- (1.) THIS second appeal has been filed by the judgment debtor appellants against the concurrent finding of the Assistant Collector, Udaipur as well as the Revenue Appellate Authority, Udaipur scaling down the mortagage debt of the decree holder Respondent Ex-Jagirdar, in a suit for redemption filed by him against the appellants, in the Court of the Assistant Collector Udaipur during execution proceedings under sec. 47 of the Civil Procedure Code.
(2.) TWO preliminary objections were raised by the counsel for the respondent that this second appeal was not maintainable firstly, for the reason that Poonamchand was one of the appellants in the lower court and he has not been impleaded as the appellant here and the appeal was bad for non-joinder of necessary party. Secondly, a copy of the decree of the Revenue Appellate Authority has not been filed and only a copy of the judgment has been filed. Under O. 41, Rule 1 of the Civil Procedure Code unless a decree of the order appealed against is filed the appeal is not maintainable. In support (he counsel cited A; I. R. 1951, Madhya Bharat page 61. To these preliminary objections the counsel for the appellant replied by saying that under order 41 Rule 4 of the Civil Procedure Code, where a common ground exists between the defendants and plaintiff one or all could file and maintain an appeal and it is not necessary to implead all persons as parties to these proceedings. In this case we have seen the judgment from which it appears that in this case a suit for redemption has been filed against members of one family and all the important branches of the family have been impleaded and if some are left out the suit or the appeal cannot be considered as bad for non-joinder of parties. For failure to implead Poonamchand as appellant the appeal is still maintainable by the other appellants. With regard to the second preliminary objection the counsel for the appellant replied by saying that this second appeal is not against the decree but against an order for the execution proceedings and no formal decree was drawn up by the court concerned, otherwise the same would have been produced. The counsel for the respondent has not been able to show us that the court against whose decree the second appeal has been filed has really drawn up a decree or not. No decree in fact was drawn up. We have also examined the ruling A. I. R. 1951 Madhya Bharat page 61 cited by the appellants in which after considering a number of cases the court has come to the conclusion that where a separate decree has been drawn up then the filing of the decree was mandatory and unless a copy of the decree was filed the appeal was not maintainable. In this case the counsel for the respondent has not shown that in fact any formal decree was drawn up by the first appellate court. We have also examined the file and we were not able to trace any decree drawn up by the first appellate court. In these circumstances it cannot be said that the failure on the part of the appellant to file a copy of the formal decree which does not exist on the file is fatal to the maintenance of this appeal. Therefore both these preliminary objections of the respondent are ruled out. The first contention of the counsel for the appellant was that in an execution proceeding before the trial court it was not open for the respondent to take the plea that his jagir debt should be reduced because the same plea was taken when the case came up for hearing in appeal before the Board of Revenue and the plea was withdrawn by the respondent. It thus became a res judicata and the trial court was precluded from reopening the matter again. This contention of the counsel for the appellants was on the face of it untenable. The plea whether the mortage debt of the respondent could be reduced or not was incidentally raised but subsequently withdrawn before the Board of Revenue with permission to pursue this remedy separately. This plea of the respondent was, therefore, never decided on merits by the Board of Revenue. It was formally raised and decided in the trial court and therefore in our opinion it cannot be said that this plea of the respondent operated as res judicata. The proper forum of raising this plea was the trial court and not the appellate court. The second contention of the counsel for the appellant was that the plea of the reduction of mortagage debt under the Rajasthan Jagirdars Debt Reduction Act 1956 could not have been taken by the respondent before the executing court. This plea of the counsel for the appellant also is of no substance because a plea of the type could be taken by the parties before any court of law and under sec. 4 of the Rajasthan Jagirdars Debt Reduction Act, 1956, execution benefit of the enactment could be given to a decree holder or a judgment debtor even after the decree has been passed. Therefore the court was in our opinion quite competent to scale down the debt according to the prescribed formula during the proceedings. The third contention of the counsel for the appellant was that no issue was framed between the parties relating to the fact that the respondent was a Jagirdar and this debt pertained to jagir land. The suit for redemption was filed by the respondent in his ordinary capacity and not in the capacity of a Jagirdar. On this point we have also examined the file. Both the sub-ordinate courts have given a concurrent finding on the admission of the parties that the respondent was a jagirdar and the land mortgaged was a jagir land, and therefore it was not necessary in view of this admission of the parties for the executing court to frame any issues for trial. This contention therefore, has no force. The appeal of the appellant is, therefore, rejected. .;