JUDGMENT
1. The facts of this case are as follows:-- The property in dispute was owned by one Kallan. There wag an usnfructuary mortgage upon it for the sum of Rs. 290. It was subsequently mortgaged to Banke Lal, the defendant, under two deeds dated the ,20th of February 1895 for Rs. 150 and 27th of June 1895 for Rs. 150. The property, i.e., the equity of redemption, was subsequently sold in execution of a decree on the 26th of March 1100 and was purchase by the plaintiff, Moti Ram. In that year 1900, Banke Lal brought a suit on his first deed of the 20th of February 1895 for sale of the property and he joined Moti Ram as a defendant. In this suit Banke Lal mentioned the prior usufructuary mortgage and the fact that Rs. 290 thereon was due to Mathura Prasad, the mortgagee. He offered to pay this sum. He prayed for a decree for sale. He paid off the Rs. 290. His decree was dated the 16th of July 1900 and he got a final decree for sale on the 23rd of February 1901. In neither of these decrees was there any specific mention of the sum of Rs. 290, but it was actually paid into Court by Banke Lal and was withdrawn by the prior mortgagee in July 1901. The property was not sold as Moti Ram came to terms with Banke Lal. A certain sum of money was paid down in 1901 and other sums were paid on subsequent dates up to the year 1904, when the full claim of Rs. 737 odd was paid off by Moti Ram. This included the sum of Rs. 290 mentioned above. In 1909 Banke Lal brought a suit on the basis of his second mortgage, dated the 27th of June 1895, and he asked for sale of this property. Moti Ram was impleaded as a defendant. He proceeded to hold up as a shield his rights which had accrued to, him by payment of the sum due on the two prior mortgages mentioned above, i.e., the sum of Rs. 737 odd. In his defence he made a mistake in figures, but it was finally admitted that the sum which he had paid was Rs. 737 odd. His case was that the plaintiff Banke Lal had no right to sell this property without first paying off to him the above-mentioned sum. The Court in its judgment held that he was legally entitled to hold up this shield ; and it held further that the property could only be sold 'subject to his lien," (whatever the Judge may have meant thereby). A preliminary decree for sale was drawn up and mention of the lien was entered therein. The decree-holder Banke Lal applied for his final decree in accordance with the preliminary decree. Notice was issued to Moti Ram. He did not appear. A final decree was drawn up, which was simply an order for the sale of the property without mentioning Moti Ram's lien in any way The property was then put to sale in execution of the decree and was purchased by Banke Lal himself. Banke Lal did not deposit any sum for payment to Moti Ram. He applied for possession as auction-purchaser and in May 1912 was put into possession by the Court. Thereupon Moti Ram made an application to the Court, pointing. out that the money had not been paid to him and asking that he might te re placed in possesesion of the property until the money had teen paid. The Court held that it could not go into this matter in the course of the execution of the decree and that if Moti Ram had any remedy he must seek it by a separate suit, hence the suit out of which this appeal has arisen. Moti Ram has claimed to recover the sum of Rs. 737 plus interest from Banke Lal by sale of the property in question. The Court of first instance decreed the claim. The lower Appellate Court dismissed it as being barred by limitation. It held that Moti Ram was driven to sue upon the two original mortgages and as they dated back to 1895 in the one case and prior to that in the other, the suit was barred by limitation.
2. The pleas taken before us are, first of all, that the present suit is a suit to enforce a liability created by the judgment which was passed between the parties in Banke Lal's second suit; that Article 122 applies, and that the suit is within time. In the alternative it is urged that it is a suit to enforce a charge under Article 132; that no charge arose in favour of the plaintiff until the decision of the suit or at least until the years 1901 to 1904 when he paid the money; since which time thee have been certain acknowledgments of liabilities made by Banke Lal, which under Section 19 of the Limitation Act would operate to extend limitation. There has been a great deal of discussion over the meaning of Sections 74 and 101 of the Transfer of Property Act, but we do not think that they are at all relevant to the point that we have to decide. Section 101 of the transfer of Property Act does not apply to the case in question. Moti Ram was not the owner of a charge or encumbrance who had become absolutely entitled to the property., He was a person who had become entitled to the property by auction-purchase : who subsequently paid off two prior mortgages and when he was sued by Banke Lal, he, by the application of equitable principles, was entitled to hold up the payments that he had made as a shield and to demand that Banke Lal should repay to him that sum before he could oust him from the property. The judgment in the suit between him and Banke Lal did not create a liability. It merely declared the right of Moti Ram and did not create it. "We do not think that Article 122 has any application to the facts of the present suit. In both the Courts below the defendant raised the plea that this suit was barred by the provisions of Section 47 of the Code of Civil Procedure. The first Court dismissed this plea in two lines. The lower Appellate Court did not touch it, It has been raised and discussed before us. We have summoned the Collector's record of the sale proceedings in order to satisfy ourselves as to what took place therein between the parties; but it has been of no assistance, as the proclamation of sale is not to be found in it. If this suit were treated as one upon the original mortgages, it would be barred by limitation. It clearly cannot be treated as a suit based upon the previous judgment and to enforce a liability created thereby, and Article 122 of the Limitation Act does not apply. Nor does Article 132 apply. Even if it did, the bar of limitation would still be there as we have not been able to find the alleged acknowledgments.
3. The plaintiff's present position is due to his own negligence. He was duly impleaded in Banke Lal's last suit and he rightly raised the plea that the property could not be sold until the sum of Rs. 737 had been paid to him. The Court passed a wrong decree directing the property to be sold subject to his lien. It ought to have directed Banke Lal to pay the money before he put the property to sale. The plaintiff remained satisfied with that decree.
4. If we assume that the Court meant by the words "subject to the lien of Moti Ram" that the money was to be paid before the property was sold, then Moti Ram has been most negligent. Even when the final decree was prepared, he did not appear to see that the decree was properly drawn up and as a matter of actual fact it omitted all mention of his rights.
5. When the decree was put into execution and notice issued to him, he did not appear and the property was sold and possession awarded. He then came into Court and asked to be re-placed into possession. The Court refused his plea and he did not appeal.
6. It is clear that no separate suit will now lie. The matter was one that ought to have been raised and actually was raised between the parties in the previous litigation and Moti Ram asked for the relief to which he was entitled, viz., that the property should not be sold until he had been paid off. The Court's decree did not in terms grant him that relief. If its decree be taken as a refusal to grant the relief he cannot now sue for it again.
7. If it be taken as having granted him that relief, he ought to have enforced it in the execution department and no separate suit will lie. If the present suit be treated as an application in the execution proceedings, he is met with the fact that the final decree is silent on the point and no attempt has been made to make it agree with the preliminary decree. If that error be now amended, he will then be met with the fact that when notice was issued to him he took no objection and when after the property had been sold he came into Court and the Court refused to give him his relief in those proceedings, he remained satisfied with that order. The principle of the rule of res judicata must be applied. He ought to have appealed and obtained his relief then and there. He cannot re-open the point again by a fresh application in the execution proceedings. We can see no way of giving him relief now, and he has merely himself and his own negligence to thank for his present difficulty.
8. The appeal must fail and we dismiss it. In the circumstances of the case, however, we order the parties to bear their own costs of this appeal.