SECOND APPEAL 7 of 2001 on 27 November 1998

1. Anil Kumar Roy

2. Navin Kumar Roy, Both sons of Late Harbans Roy,

3. Most. Sunaina Devi, W/o Late Harbans Roy, All residents of Village-Chainpur Mubarakhpur, P.O.- Chainpur, P.S.- Siswan, District- Siwan.Chainpur Mubarakhpur, P.O.- Chainpur, P.S.- Siswan, District- Siwan.

4. Dipika Kumari, D/o Late Harbans Roy, W/o Shri Amlesh Mishra, R/oMohalla- Alka Colony, P.O.- Bahadurpur, P.S.- Bahadurpur, District- Patna.Mohalla- Alka Colony, P.O.- Bahadurpur, P.S.- Bahadurpur, District- Patna.

... ... Petitioner/s

Versus

2. Kamlesh Singh

3. Prakash Singh @ Laltu Singh, Both sons of Janak Singh, 4.Pratibha Devi4.Pratibha Devi

5. Puranjana Devi

6. Priti Devi, All daughters of Janak Singh, All residents of Village- ChainpurMubarakhpur, Hal- Chainpur, P.S.- Siswan, District- Siwan.Mubarakhpur, Hal- Chainpur, P.S.- Siswan, District- Siwan.

7. Most. Raj Kishori Devi, W/o Late Paramhans Roy

8. Surendra Ray, S/o Late Paramhans Roy, Both residents of Mauza- ChainpurMubarakpur, P.S.- Siswan, Hal- Chainpur, District- Siwan.Mubarakpur, P.S.- Siswan, Hal- Chainpur, District- Siwan.

9. Umrawati Devi, W/o Dharmendra Singh, R/o Village- Amlauri, P.O.-Amlauri, P.S.- Siwan Mufassil, District- Siwan.Amlauri, P.S.- Siwan Mufassil, District- Siwan.

10. Vijanti Devi, W/o Ram Udar Pandey, R/o Village- Pachua, P.S.- Ekma,District- Saran.District- Saran.

11. Sijanti Devi, W/o Jai Kumar Singh, R/o Village- Newari, P.O.- Newari, P.S.-Raghunathpur, District- Siwan.Raghunathpur, District- Siwan.

12. Prabhawati Devi, W/o Narendra Roy, R/o Village- Husena Bangra, P.O.-Chainpur, P.S.- Siswan, District- Siwan. All daughters of Late ParamhansRoy.Chainpur, P.S.- Siswan, District- Siwan. All daughters of Late ParamhansRoy.

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHACAV JUDGMENTDate : 25-09-2025

The instant civil miscellaneous petition has been filedby the petitioners for quashing the order dated 18.12.2017passed by the learned Sub Judge-VII, Siwan in Execution Case No. 01 of 1999 whereby and whereunder the aforesaidexecution case was closed and the petitioners were given anoption to file fresh execution case. Further prayer has beenmade to restore the aforesaid execution case to its originalposition.

2. Briefly stated, the facts of the case, as flowingfrom the record, are that the plaintiffs and respondent 2[nd] set aredecree holders and respondent 1[st] set are judgment debtors. Theoriginal plaintiffs, namely Harbans Roy and Paramhans Roy,instituted Title Suit No. 348 of 1985/7 of 1992 for declaration oftheir title and recovery of possession in respect of suit landcomprised in Khata No. 284, Plot No. 3283 measuring 1 bigha 6katha 2 dhur situated in Mauza Chainpur, Baharakhpur, P.S. &District-Siwan. The aforesaid title suit was dismissed by thelearned Sub Judge-VII, Siwan vide judgment dated 09.12.1992and decree dated 21.12.1992. Thereafter, original plaintiffspreferred Title Appeal No. 1 of 1993 against the judgment anddecree of the learned trial court. The Title Appeal No. 1 of 1993was allowed by learned Additional District Judge-II, Siwan videjudgment dated 27.11.1998 and the judgment and decree of thelearned trial court passed in Title Suit No. 348 of 1985/7 of1992 were set aside. It further transpires that the defendants of

Title Suit No. 348 of 1985 and respondents of Title Appeal No.1 of 1993 preferred Second Appeal No. 20 of 1999 which wasdismissed on 12.01.2000 under Order 41 Rule 11 of the Code ofCivil Procedure (for short ‘the Code’) but with modification ofthe judgment of the first appellate court that the right, title andinterest over the suit land should be declared in favour of theplaintiffs subject to the mortgages encumbered on the suit landin favour of the defendant no.4 and the father of the defendantno.1, namely Raj Narayan. It was also held that the plaintiffsshall be entitled to redeem those mortgages in due course of lawand get recovery of possession on the basis of title. Afterexecution case being filed on behalf of the decree holders, anobjection petition dated 09.10.2014 was filed by the judgmentdebtors in the aforesaid execution case for dismissal of theexecution proceeding. The said application was heard andrejected on 18.04.2016. The rejection was challenged by thejudgment debtor by filing Civil Misc. No. 568 of 2016 whichwas also dismissed by this Court on 07.09.2016. Prior to that,judgment debtors filed a Misc. Case No. 7 of 2001 against thedecree holders for dismissal of Execution Case No. 1 of 1999.But the said miscellaneous case was dismissed. Thereafter, itappears the judgment debtors filed another application dated 08.03.2017 under Section 151 of the Code. A rejoinder dated21.03.2017 was filed by the decree holders. The applicationdated 08.03.2017 filed by the judgment debtors was allowed bythe learned executing court vide order dated 18.12.2017 whichis under challenge before this Court.

3. Learned counsel for the petitioners submitted thatthe impugned order is not sustainable as the learned executingcourt has acted illegally and without jurisdiction while passingthe impugned order. Learned counsel further submitted that forbetter appreciation of the issue involved in the case it wasnecessary to look into the facts of the case. Thefather of thepetitioner nos. 1, 2 and 4, namely Harbans Roy (since deceased)purchased through registered sale deed dated 09.01.1974 theaforementioned suit land having area of 1 bigha 6 katha 2 dhurfor a consideration amount of Rs. 5,000/- from one Shiv KumarGiri. Rs. 3,000/- was mortgage money which was kept inreserve in the aforesaid registered sale deed to be paid tomortgagee Jaggu Tiwari of registered mortgage dated29.06.1967 in respect of aforesaid land executed by Shiv KumarGiri in favour of Jaggu Tiwari. From the redemption note dated31.10.1971 on the back side of the first sheet of registeredmortgage deed, it would appear that Jaggu Tiwari received Rs.

3,000/- and he handed it to one Raj Narayan Rai. Again MahantShiv Kumar Giri executed another mortgage deed dated27.10.1991 in respect of four plots including the entire area ofthe purchased plot of Rai Narayan Rai for mortgage money ofRs. 7,000/- having total area 4 bigha 8 katha 16 dhur situated atthe same place where the purchased land is also situated andtherein it has been mentioned that Rs. 3,000/- of mortgagemoney is payable to Jaggu Tiwari. But the said Jaggu Tiwari hasalready received Rs. 3,000/- from Raj Narain Rai in respect ofpurchased land of 1 bigha 6 katha 2 dhur. Thus, the decreeholders were liable only to pay mortgage amount of Rs. 3,000/-as per the sale deed dated 09.01.1974 but in order to avoidfurther litigation, the vendee agreed to pay the mortgage amountof Rs. 7,000/- and also filed application to that effect on08.06.2016 with a prayer to permit him to deposit the mortgageamount of Rs. 7,000/- in the court which relates to mortgagedeed dated 27.10.1971 pursuant to the order dated 08.04.2016passed by the learned 3[rd] Sub Judge, Siwan in Execution CaseNo. 01 of 1999. This prayer was opposed by the judgmentdebtor Janak Singh by filing his rejoinder. In a similar matter,judgment debtor Janak Singh and others moved the High Courtagainst the order dated 18.04.2016 on the objection petition of

the judgment debtors in Civil Misc. No. 568 of 2016 but thisCourt dismissed the same vide its order dated 07.09.2016.Thereafter, Kamlesh Singh, son of judgment debtor JanakSingh, filed an application dated 08.03.2017 without mentioningany provision of law, for dismissal of the execution case andalso for direction to get the decree executed passed by the HighCourt in Second Appeal No. 20 of 1999. Learned counselreferring to the decision of this Court in Second Appeal No. 20of 1999 pointed out that in terms of the orders of this Court inthe second appeal, the petitioners are only entitled to redeem themortgage made in respect of the suit land and not in respect ofother land but in spite of that the petitioners were ready andfiled petition for grant of permission to deposit an amount of Rs.7,000/- which includes the amount of mortgage for other land aswell, in order to avoid further delay. Learned counsel furthersubmitted that mortgage money of the mortgage deed dated29.06.1967 has already been deposited by the petitioners.Furthermore, the petitioners have always been ready to depositRs. 7,000/- and they moved an application on 08.06.2016 beforethe learned executing court for granting permission to depositthe aforesaid amount in compliance of order dated 09.10.2014but instead of granting permission to deposit the aforesaid amount, the execution case was dismissed vide order dated08.12.2017 which is in complete violation of the law.

4. Learned counsel further submitted that the original judgment debtors made an application under Section 47 readwith Section 151 of the Code which was registered as Misc.Case No. 7 of 2001. On 23.12.2010, the objection of thejudgment debtors made in Misc. Case No. 7 of 2001 wasdismissed for want of prosecution. Earlier, an application wasfiled for dismissing the Execution Case No. 1 of 1999 and suchapplication was itself dismissed for non-prosecution and Misc.Case No. 5 of 2009 was filed to restore it. But the judgmentdebtors did not show any interest in Misc. Case No. 7 of 2001and accordingly, recording its opinion that keeping the casepending was not in the interest of justice, the learned executingcourt, vide order dated 23.12.2010 dismissed the matter for wantof prosecution. This dismissal was not challenged and hasattained finality. Learned counsel next submitted that the learnedexecuting court failed to consider that judgment debtors hadbeen adopting dilatory tactics to delay the execution by filingfrivolous petitions. Learned counsel further submitted thatdismissal of the execution case is on a frivolous petition whichwas the second petition filed with similar facts and for this

Arguments

reason the amount of Rs. 7,000/- could not be deposited.Learned counsel stressed that there was no liability of thepetitioners to pay that amount because the order of this Courtrelates only to the suit land and no other lands. Mortgage moneyof Rs. 7,000/- is also for other lands including the suit landswhich is evident from the mortgage deed dated 27.10.1971.Learned counsel further submitted that the learned executingcourt has completely failed to take into consideration the factthat the objection raised by the judgment debtors/respondent 1[st]set were already decided by the same court on 18.04.2016. Ifthe question of dismissal of execution case was already decidedby the competent court, the judgment debtors were notpermitted to raise the same question between the same party inthe same proceeding. Therefore, the learned executing courtfailed to appreciate that application of the judgment debtors wasbarred by res judicata since res judicata applies even atsubsequent stages of same proceeding. Learned counsel furthersubmitted that this fact was not considered by the learnedexecuting court though it was specifically raised by thepetitioners in their rejoinder. Therefore, the learned executingcourt committed jurisdictional error in ignorance of legalprinciples and acted with illegality and material irregularity.

Learned counsel reiterated that it is well settled law thatprinciples of res judicata applies in same proceeding insubsequent stages. In the present case, the parties are same,subject matter is same and real controversy, regardingcontinuance of execution proceeding after orders passed by theHigh Court in Second Appeal No. 20 of 1999 dismissing thesaid appeal under Order 41 Rule 11 of the Code, has also beendecided by the court of competent jurisdiction twice earlier;firstly in Misc. Case No. 7 of 2001 and secondly on objectionpetition dated 09.10.2014. Therefore, the learned executingcourt has exercised the jurisdiction which was not vested in itwhile passing the impugned order. Learned counsel furthersubmitted that the order dated 18.04.2016 has been upheld bythis Court vide order dated 07.09.2016 passed in Civil Misc. No.568 of 2016. Learned counsel relied on the decision of theHon’ble Supreme Court in the case of Y.B. Patil And Ors. vs.Y.L. Patil reported in (1976) 4 SCC 66, in the case of AshokKumar Srivastav vs. National Insurance Company, Limited &Ors., reported in (1998) 4 SCC 361 and in the case of IshwarDutt vs. Land Acquisition Collector And Anr., reported in(2005) 7 SCC 190 on the proposition that the principle ofSection 11 of the Code will apply at subsequent stages of the same proceedings in respect of orders already rendered in thoseproceedings. But even this fact was also not taken intoconsideration by the learned executing court and, hence, theimpugned order is perverse and the same needs to be set aside.

5. On the other hand, learned counsel appearing on behalf of the judgment debtors/respondents vehementlycontended that there is no infirmity in the impugned order andthe same does not need any interference by this Court. Learnedcounsel, at the outset, referred to the decision of this Court inSecond Appeal No. 20 of 1999 wherein it has been recorded asunder:-

“I find that the decree passed by the appellatecourt requires some modification with regardto the relief of recovery of possession. Thedecree passed by the appellate court ismodified to the extent that the right, title andinterest over the suit land should be declaredin favour of the plaintiffs subject to themortgages encumbered of the suit land infavour of the defendant no.4 and late RajNarayan/defendant No.1. The plaintiffs shallbe entitled to redeem those mortgages in duecourse of law and get recovery of possessionon the basis of title.”court requires some modification with regardto the relief of recovery of possession. Thedecree passed by the appellate court ismodified to the extent that the right, title andinterest over the suit land should be declaredin favour of the plaintiffs subject to themortgages encumbered of the suit land infavour of the defendant no.4 and late RajNarayan/defendant No.1. The plaintiffs shallbe entitled to redeem those mortgages in duecourse of law and get recovery of possessionon the basis of title.”

6. Learned counsel further submitted that statute provides for redemption of mortgage and the petitioners did not comply the orders of this Court and pursued the Execution CaseNo. 1 of 1999 which was based on the decree of the firstappellate court. Mortgage was not redeemed in accordance withlaw though the petitioners have to get the suit land redeemed bydue process of law as directed by this Court while dismissingthe appeal under Order 41 Rule 11 of the Code. Procedure forredemption of mortgage of immovable property is prescribedunder Order 34 of the Code which was not resorted to by thepetitioners. For this reason, any amount deposited by thepetitioners in the court below does not entitle them to redeemthe mortgage in violation of prescribed procedure. Learnedcounsel clarified that the petition dated 09.10.2014 filed earlierfor dismissal of execution case, was not held maintainable onthe ground that mortgage deed dated 29.06.1967 has not beenredeemed and the learned trial court directed the decree holderto comply the directions of the High Court and the objectionpetition was accordingly disposed of. Learned counsel furthersubmitted that the decree holder had been pursuing ExecutionCase No. 1 of 1999 on the basis of decree of first appellatecourt. But the first appellate court’s decree was modified inSecond Appeal No. 20 of 1999 vide order dated 12.01.2000.Hence, considering the rival submission of the parties, the

learned executing court passed the impugned order holding thatthe execution case was being pursued by the decree holders onthe basis of the decree of the first appellate court which wasmodified by the High Court in second appeal and so the presentexecution was ordered to be closed with liberty to the decreeholders to file fresh execution case on the basis of modifieddecree of the High Court. Learned counsel further submittedthat application under Section 47 read with Section 151 of theCode filed before the learned executing court and registered asMisc. Case No. 7 of 2001 was filed on the ground thatmortgagee Jaggu Tiwari who was not made party in executioncase from whom the delivery of possession is being sought andin absence of Jaggu Tiwari execution case cannot proceed.Therefore, the objection petition and miscellaneous case filed bythe judgment debtors were on different grounds and theirdisposal would not affect the merits of the application dated08.03.2017 filed by the judgment debtors. Learned counselreferred to a decision of the Hon’ble Supreme Court in the caseof Jamila Begum (Dead) Thr. Lrs. vs. Shami Mohd. (D) Thr.Lrs. & Anr., reported in AIR 2019 SC 72 wherein in paragraphno. 33, the Hon’ble Supreme Court held that Order 34 Rule 7 ofthe Code stipulates that in a suit for redemption of mortgage, the court shall prepare the preliminary decree in accordance withOrder 34 Rule 7 of the Code. The High Court has passed adecree for redemption of mortgage simpliciter. The High Courtcould not have passed the decree for redemption withoutfollowing the procedure laid down in Order 34 Rule 7 and 8 ofthe Code which, in turn, lays down a detailed procedure forpassing a preliminary decree and final decree in the suit forredemption. Therefore, the learned trial court rightly allowed theobjection petition of the judgment debtors/respondents 1[st] set.Learned counsel further submitted that after dismissal ofpetition dated 19.10.2014 by the learned Sub Judge vide orderdated 18.04.2016, the judgment debtors preferred Civil Misc.No. 568 of 2016 which came to be dismissed on 07.09.2016 bya learned Single Judge of this Court who held that after depositof the amount of mortgage with permission of the court in theyear 2001, the modification made by the High Court in secondappeal has been complied with but such finding is against thesettled principles of law and, therefore, order dated 07.09.2016passed in Civil Misc. No. 568 of 2016 is per incuriam since ithas not considered the settled proposition of law that unlessmortgage is redeemed in accordance with the procedureestablished by law, merely depositing the money would not suffice. Therefore, the execution case could not proceed. Thus,the learned counsel submitted that unless the mortgage isredeemed in accordance with procedure established by law,merely deposit of money by decree holders would not satisfy therigours of law and on this ground, the decree holders cannot saythat the mortgage has been redeemed and now they should behanded over the possession. Moreover, no orders for recovery ofpossession has been passed. Therefore, there is no infirmity inthe impugned order and the same is proper and valid.

7. In reply, learned counsel for the petitioners referredto the decision of the Hon’ble Supreme Court in the Case ofGorie Gouri Naidu (Minor) & Anr. vs. Thandrothu Bodemma & Ors., reported in (1997) 2 SCC 552 wherein it has been heldthat even an erroneous decision is binding if it has not beenchallenged and therefore, the decision dated 07.09.2016 isbinding on the parties since it has not been challenged. If thedecision dated 07.09.2016 is binding, subsequent applicationdated 08.03.2017 is hit by the principles of res judicata and thelearned executing court could not have ventured into the matterand ought to have dismissed the application before itchallenging the maintainability of the execution case.

8. I have given my thoughtful consideration to the

rival submission of the parties. The issue before this Court liesin narrow compass and it is whether the learned executing courtwas justified in allowing the application dated 08.03.2017 filedon behalf of the judgment debtors/respondents 1[st] set fordismissal of execution case. Challenge to the order dated18.12.2017 is two folds. It has been firstly contended by thelearned counsel for the petitioners that dismissal of earlierapplication dated 09.10.2014 and Misc. Case No. 7 of 2001would act as res judicata in the present matter and, therefore,the learned trial court erred in not considering this fact. Thesecond objection is on the ground that the petitioners havealready deposited the mortgage amount in the court and therewas no hindrance in redemption of mortgage in favour of thepetitioners.

9. On the other hand, it is the contention of thejudgment debtors/respondents that the decree holders wererequired to get the mortgage redeem in due course of law andthe decree holders were required to file a suit for redemption ofthe mortgage which was not done by them within the limitationperiod of 30 years and, hence, continuation of executionproceeding for recovery of possession was based on illegality. Ithas also been feebly contended on behalf of the judgment debtors that issues involved in application dated 09.10.2014 andMisc. Case No. 7 of 2001 were different and not on the sameaspect but the perusal of record shows in the objection petitiondated 09.10.2014, the objection was taken by the petitioners onsame ground for dismissal of the Execution Case No. 1 of 1999.

10. So far as challenge to the impugned order on theground of res judicata is concerned, I find merit in thesubmission of learned counsel for the petitioners. Earlier in theirpetition dated 09.10.2014, the judgment debtors took the sameobjection about continuation of the execution case and the saidapplication was heard and dismissed vide order dated18.04.2016 by the learned executing court and the said orderattained finality as the same was sustained by this Court in itsorder dated 07.09.2016 passed in Civil Misc. No. 568 of 2016.Order passed on 07.09.2016 in Civil Misc. No. 568 of 2016 hasnot been further challenged. Therefore, the impugned order ishit by the principles of res judicata.

11. So far as the second objection to the impugnedorder about deposit of mortgage money in the court below isconcerned, this contention is not of much significance. It hasbeen vehemently contended on behalf of the judgment debtorsthat the sustainability of this contention in Civil Misc. No. 568

of 2016 is against the settled principles of law that mortgagecould be redeemed only in accordance with procedureestablished by law and not by depositing the amount ofmortgage in terms of modification made in the decree of thefirst appellate court by the orders of this Court in second appeal.But as already observed, the arguments made for and againstwith regard to the contention of the petitioners is a non-issuewhich would become clear by discussion made hereinafter.

12. Admittedly, the mortgage was executed on29.06.1967. Thereafter, Bihar Money Lenders Act, 1974 cameinto force from 22.07.1975. Section 12 of the Bihar MoneyLenders Act, 1974 reads as under:- “12. Usufructuary mortgage and theirredemption.

Notwithstanding anything to the contrary,contained in any law or anything havingthe force of law or in any agreement, theprincipal amount and all dues in respect ofan usufructuary mortgages relating to anyagricultural land, whether executed beforeor after the commencement of this Act,shall be deemed to have been fully satisfiedand the mortgage shall be deemed to havebeen wholly redeemed on expiry of aperiod of seven years from the date of theexecution of the mortgage bond in respect of such land and the mortgagor shall beentitled to recover possession of themortgaged land in the manner prescribedunder the Rules:

Provided that if the mortgage bond hadbeen executed before the commencement ofthis Act nothing in this section shall entitlethe mortgagor to claim any accounts orprofits from the mortgagee by the reason ofthe benefit of redemption of the mortgageunder this provisions.”

13. The aforesaid provision makes it clear that on expiry of a period of 7 years from the date of execution ofmortgage bond, the mortgage shall be deemed to have beenredeemed. This condition applies to the mortgage executed priorto the commencement of the Bihar Money Lenders Act, 1974 orafter its commencement. Applying this law to the facts of thepresent case, as the mortgage was executed on 29.06.1967, afterexpiry of 7 years, automatic redemption would have taken placeand, hence, under Section 12 of the Bihar Money Lenders Act,1974, the said mortgage stood redeemed by the operation of law.There remains no requirement for filing any suit for redemptionafter coming into force of Section 12 of the Bihar MoneyLenders Act, 1974. Therefore, the decree holders were not evenrequired to make payment of any money or to file any suit for redemption to redeem the mortgage so as to claim the rightsover the suit property.

14. Therefore, I am of the considered opinion that thelearned executing court committed an error of jurisdiction inallowing the application dated 08.03.2017 filed by the judgmentdebtors vide its order dated 18.12.2017 as the same was barredby principles of res judicata. Further any challenge to theexecution proceeding on the ground that suit for redemption ofmortgage was not filed by the decree holders following the dueprocedure is a fallacious argument since the mortgage came tobe redeemed by operation of law under the deeming provisionsof Section 12 of the Bihar Money Lenders Act, 1974. Hence, inthe light of aforesaid discussion, I have no hesitation in holdingthat the impugned order suffers from illegality and therefore, theimpugned order dated 18.12.2017 passed by learned Sub Judge-VII, Siwan in Execution Case No. 01 of 1999 is set aside.

15. Accordingly, the present petition stands allowed.

balmukund/-

AFR/NAFRAFRCAV DATE08.08.2025Uploading Date25.09.2025Transmission DateNA

(Arun Kumar Jha, J)