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The suit was eventually decreed on 13-8-1946, ex parte against Syed Zamiruddin and on contest, against the rest. The decree was made final on 23-9-1948. In due course the mortgagee decree-holder, Maharaja Pratap Udai Nath Sah Deo, levied execution in Execution Case No. 14 of 1949 for satisfaction of the decree by sale of the mortgaged property. He died during the pendency of the execution proceeding, and his great grandson, Maharaja Chintamani Saran Nath Sah Deo, was substituted in his place.

If the contention of the respondent were given effect to, it would mean that a mortgagee, who desired to obtain possession of ravati holdings and to defeat the Act, would merely have to obtain an admission in the mortgage deed by the mortgagor that the property as a matter of fact was not raiyati land, and then would be entitled to rely upon an estoppel and the purpose of the Act would be defeated."

Evidently, this decision does not advance the case of the respondents.

11. The last case referred to by the learned Subordinate Judge is the case of -- 'Joy Chand v. Bhutnath', AIR 1930 Pat 236 (H). The decision of this case is based upon the case of 'AIR 1928 Pat 227 (A)', which I have already discussed above. In none of these cases there was a contested mortgage decree and the question whether the land was raiyati was conclusively established. As a matter of fact, not a single case has been cited before us in which though there was a final decision by the trying Court that the land was not raiyati, the judgment-debtors were allowed to re-agitate that question over again in the execution proceeding; nor is there any direct authority in support of the contention that the provisions of Sections 46 and 47, Chota Nagpur Tenancy Act, override the provisions of Section 11, Civil P. ,C. On the contrary, there is the authority of the Privy council, above referred to, that where the alienability of a particular land was finally and conclusively determined by a Court of competent jurisdiction, Section 11, Civil P. C. came into operation and debarred the parties in whose presence the decision was given from raising the same issue in a different suit or at a different stage of the same suit, notwithstanding the fact that the alienation was void under any statute.

For the application of Section 11. Civil P. C., there is indeed no difference between a decree passed after contest and a decree passed on consent of the parties. Reference may be made in this connection to -- 'Sundarajamma v. Ramulu Chetty', AIR 1932 Mad 519 (I), -- 'Secy of State y. Ateendranath Das', 63 Cal 550 CJ), and -- 'Mt. Sukh Rani v. Gajraj Singh', AIR 1942 Oudh 354 (K). This contention also is, therefore, not tenable.

13. It follows that plot No. 106 is not the raiyati land of the judgment-debtors respondents, and further in view of the previous decision in the mortgage suit that plot No. 106 is not the raiyati land of the judgment-debtors, it is not open to the respondents to challenge the saleability of the land, and the decision operates as res judicata and is binding upon them. Thus, both on facts and on law the judgment of the learned Subordinate Judge cannot be sustained. The appeal is accordingly allowed with costs throughout and the order of the learned Special Subordinate Judge is set aside.