P L D 1964 Dacca 325 (PLP)

CHOWDHURY, C. J.‑This appeal under clause 15 of the Letters Patent is against the judgment and decree of the Single Judge of the High Court in Second Appeal No. 450 of 1958. It arises out of a Title Suit No. 110 of 1954 filed by the plaintiff under Order XXI, rule 63 of the Code of Civil Procedure for declaration that the proforma defendants in the suit have got a saleable interest in the disputed land to be attached in execution of the money decree obtained by the plaintiff against the proforma defendants.

2. Short undisputed facts for the purpose of this appeal are as follows :‑The disputed land originally belonged to the proforma defendants. They mortgaged it to the principal defendant on the 6th of June 1914 in usufructuary form and put the principal defendant in possession of the same. While in such possession there was a decree for rent of the tenancy of which the disputed land forms part and in execution of the decree by the out‑going landlord the property was purchased by the principal defendant in 1923. Thereafter the proforma defendant approached the Local Debt Settlement Board for settlement of the debt due on account of the usufructuary mortgage and obtained an award in 1945. Soon after the principal defendant filed Title Suit No. 162 of 1946 for declaration of his right title and interest, and for confirmation of the possession after declaration that the award of the Local Debt Settlement Board was ultra vires and as such a nullity. The principal defendant succeeded in that suit.

3. The plaintiff obtained a money decree in the year 1952 against the proforma defendants and put the decree into execution and in execution of that decree attached the disputed property under Order XXI, rule 58 of the Code of Civil Pro cedure. To this attachment principal defendant objected alleging that the proforma defendant had no saleable interest in the property and as such this disputed property is not liable to attachment. This objection having been allowed by the executing Court the attachment order was vacated. The plaintiff has filed the present suit for declaration that the proforma defendant has got saleable interest in the property inasmuch as under the mortgage bond the liability to pay rent during the sub sistence of the mortgage was with the principal defendant and he having failed to pay rent got the property sold and pur chased by him in auction, stands in the proforma defendant, the mortgagor.

4. Both the Courts below found that the landlord who obtained a decree for rent was an out‑going landlord. There fore, the effect of the decree for rent was a money decree and in execution of that money decree what was purchased by the principal defendant is the right, title and interest of the judg ment‑debtor.

5. The trial Court dismissed the suit holding that right, title and interest of the proforma defendant in the disputed land was actually sold by the sale of his interest in execution of the decree for rent and also extinguished by the declaration obtained by the principal defendant against the proforma defendant in Title Suit No. 162 of 1946.

6. On appeal, the learned Subordinate Judge though hold that the decree obtained in the title suit was not binding against the plaintiff decree‑holder as he was not party as to that decree yet dismissed the appeal holding that the effect of the sale in execution of decree for rent extinguished whatever right, title and interest, the proforma defendant had in the disputed land and as such they had no saleable interest at the time when the property was attached by the plaintiff in execu tion of the decree under Order XXI, rule 58 of the Code of Civil Procedure.

7. On second appeal, the learned Judge dismissed the appeal holding that the decree obtained in Title Suit No. 162 of 1946 is binding on the plaintiff although he was not a party to that suit and observed at page 2 of the judgment as follows "The question, therefore, that arises in this case is whether in spite of the decree obtained by the principal defendants against the proforma defendants the present plaintiff who has obtained the money decree against the proforma defendants can proceed against the above property and show that the proforma defendants have saleable interest in the property. The question that needs consideration is whether the present decree‑holder plaintiff is a party claiming under the proforma defendants within the meaning of section 11 of the Code of Civil Procedure. If he is so then he will be bound by the decree passed in the title suit even though the question that is now raised was not directly and sub stantially in issue in the proforma suit by virtue of explana tion 4 to that section. If the present plaintiff is held to be claiming under the proforma defendants then the present question will be barred by the principle of constructive res judicata. There are authorities to the effect that an auction purchaser in execution of a money decree purchases only the right, title and interest of the judgment‑debtor and, therefore, claims under him and will, therefore, be bound by a previous decision against him in respect of such property. The petition of a decree‑holder in money suit who attaches the property of his judgment‑debtor against whom there is already a decision in respect of such property, in my view: cannot be better." Hence this Letters Patent Appeal.

8. It is argued by Mr. M. A. Aziz, learned Advocate for the appellant, that the decree‑holder in that suit under Order XXI, rule 63 of the Code of Civil Procedure claimed to attach property of the proforma defendants alleging that the proforma defendants have saleable interest, and the decree‑holder plaintiff is not claiming through proforma defendants, rather against them for his own benefit namely, for realisation of the decretal amount against the proforma defendants and as such it is wrong to hold that the plaintiff decree‑holder is claiming through the proforma defendants and the suit is barred by constructive res judicata. His further contention is that the plaintiff is entitled to prove that the liability to pay rent during the subsistence of the usufructuary mortgage was on the mortgagee principal defendants and in absence of the mortgage deed the plaintiff can rely on the provision of section 76 (c) of the Transfer of Property Act which runs as follows :‑

" When, during the continuance of the mortgage the mort gagee takes possession of the mortgaged property (c) he must, in the absence of a contrary, out of the income of the property, pay the Government revenue, all other charges of public nature and all rent accruing due in respect thereof during such possession, and any arrears of rent in default or payment of which the property may be summarily sold."

9. We think the first contention of the learned Advocate is of substance. Before the purchase of the disputed land in execution of the money decree it cannot be said that the plaintiff the money decree‑holder has stepped into the shoes of the proforma defendants or his position cannot be better than what would have been his position after purchase in execution of that money decree or better than that of a purchaser in execution of money decree. Further, the Title Suit No. 162 of 1946 was mainly for declaration that the award obtained by the proforma defendants in the Local Debt Settlement Board was without jurisdiction and as such a nullity and on that ground the plaintiff wanted declaration of his title and confirmation of his possession. In that suit the question of fiduciary relationship of mortgagee and creation of trust by purchase in execution of a decree for rent brought about by the principal defendants, the mortgagee in possession, by non‑payment of rent which he was under obligation to pay, if any, would not have been relevant. It is not clear to us whether the principal defendants in that suit sought declaration of their title in the disputed land on the basis of this purchase in execution of decree for rent. In the absence of such specific prayer it would be difficult to say that there was any scope for constructive res judicata under the explanation of section 11 of the Code of Civil Procedure. Even if that title suit for declaration of title of the plaintiff of that suit was on the basis of or comprehensive of his title on the basis of his purchase in execution of decree for a rent, how the decision in that suit can operate as res judicata, constructive or otherwise, against a person who was neither a party nor claimed through any of the party to that suit.

10. Be that as it may, in no circumstances it can be said that the present plaintiff decree‑holder comes within that explanation to be bound by the decree in Title Suit No. 162 of 1946.

11. As to the second contention of the learned Advocate for the appellant, it is contended by Mr. Abdul Wadud Mia, the learned Advocate for the respondents, that at the time of pur chase in execution of the decree for rent in the year 1923 the relevant portion "all rent" in clause (c) of section 76 of the Transfer of Property Act, was not there and it was intro duced by the Amending Act XX of 1929 long after the sale in 1923 and as such the plaintiff is not entitled to get benefit of clause (c) of section 76 in respect of a mortgage long before the amendment and he is to prove positively that under the agreement of the mortgage deed the mortgagor was under obligation to pay rent during the subsistence of the mortgage. This contention of the learned Advocate for the respondents is well‑founded.

12. All the Courts below found that the plaintiff failed to prove the agreement under which mortgagor was obliged to pay rent to the landlord. It is admitted by the learned Advocate Mr. M. A. Aziz that the mortgage bond was a registered mortgage deed. So, a certified copy was available to the plaintiff to prove the agreement. In spite of the finding of the Courts below that he failed to prove the agreement, the plaintiff did not produce the certified copy of the mortgage deed even before us as an additional evidence to substantiate the allegation that there was an agreement under which the plaintiff was bound to pay the rent. Further, it appears from the title suit itself that since the purchase in 1923 the principal defendant is holding the land in assertion of his right and that was adversely to the mortgagee and not on the basis of a mortgage. In the year 1946 when the principal defendant tiled the suit for declaration of his title was preferred even on the basis of his purchase in the rent sale. The plaintiff of the present suit may not be bound by the principal of res judicata but he cannot avoid his liability to prove the agreement under which the principal defendant was under obli gation to pay the rent while in possession of the land as a mortgagee. In the absence of that the plaintiff' cannot urge on the basis of section 76 (c) that there was a fiduciary relationship between the mortgagor and the mortgagee and in disregard of that relationship and the obligation under the mortgage agreement defaulted in payment of rent and purchase the property while in possession as such mortgagee, in execution of the decree for a rent. This ground is quite sufficient tot dismiss the suit of the plaintiff. The result, therefore, is that this appeal is dismissed with costs. A. S. CHOWDHURY, J.‑‑I agree with my Lord the Chief' Justice. S. Q./K. B. A. Appeal dismissed.