Balagangadharan Nair, J.

1. Petitioner who is the decree-holder challenges the order of the Subordinate Judge, Kasaragod in so far as it directed the exemption of items 1 to 5 of lot I and items 4 and 6 of lot II from the proclamation schedule and the sale only of the remaining items in accordance with a fresh proclamation to be filed by her. The decree was on the basis of a simple mortgage of 12th September 1952 for Rs. 9,000 charged on the decree schedule properties including the above items, executed by the family of Defendants 1 to 5. By document, dated 1st February 1957 the family agreed to sell the, properties to Defendants 6 and 7 for Rs. 14,000 with a direction to pay out of it the mortgage amount due to the Petitioner-decree-holder. By a subsequent agreement Defendants 6 and 7 were directed to pay interest on the mortgage money to the Petitioner. Pursuant to this agreement they were paying interest till 1969 but thereafter they withheld payment in compliance with a notice served upon them by the mortgagors. The Petitioner thereupon brought the suit joining Defendants 6 and 7 as parties in view of the direction given to them by the mortgagors to pay interest and the payment which they were actually making. By their written statement Ext. B-9 Defendants 6 and 7 said that in terms of the agreements they were liable to pay but had stopped payments in view of the notice of the mortgagors. While referring to the agreements they also mentioned that they were already in possession of the properties as tenants. By the judgment, dated 23rd July 1970 the court decreed the suit against Defendants 1 to 4 Defendant 5 had died in the meanwhile) and the properties, exonerating Defendants 6 and 7 as there was no privity of contract between them and the Petitioner. When the Petitioner started execution, Defendant 7 and 2 of the legal representatives of Defendant 6 who is now dead, being Respondents 5, 7 and 10 objected to the sale of the disputed items on the ground that they were cultivating tenants and that the right of the landlords-mortgagors had vested in the Government. The court below accepted this contention and directed exemption of these items from sale by the order under revision.

2. Counsel for the Petitioner contended that the objection of the Respondents is res judicata as they had not put forward the lease in the suit and secured a reservation of their right in the decree and that to uphold their objection at this stage Will be to travel outside the terms of the decree. Now it is proved beyond doubt by Exts. B-1 to B-5 that these items were outstanding on lease with the Respondents from 1930 onwards. The lease is recited in the agreement Ext. B-6 as well. The Special Tahsildar (L.R.) has also passed preliminary findings in their favour (Ext. B-7) in C.A. No. 1201 of 1971 accepting the tenancy. They had even mentioned the lease in their written statement. The result was they had an interest in the properties even before the mortgage in favour of the Petitioner and were therefore in the position of a prior charge holder. The Petitioner had not sought to dislodge their interest; indeed she had in no way challenged their interest and made them parties to the suit only because of the agreements under which they were paying her interest on the mortgage money.

Their interests were not matters directly or substantially in issue in the suit nor had they been heard and finally decided by the court. In the nature of the plaint and the reliefs sought Defendants 6 and 7 had no obligation to claim priority for their interest or seek a reservation thereof and their failure to do so will not operate as res judicata for this is not a plea which they might and ought to have put forward as a ground of defence even to actract Explanation IV to Section 11, Code of Civil Procedure, for it was outside the controversies in the suit.

3. In Radhakishan v. Khursked Hossein I.L.R. Cal 662, the Respondents who were second mortgagees brought a suit to enforce their mortgage, making the prior mortgagee a party but did not attack or impugn the latter mortgage. The prior mortgage did not appear to defend the suit. The Appellant obtained assignment of the prior mortgage and in the suit instituted by him, the Respondents who were made parties contended that the prior mortgage might and ought to have been made a ground of defence in the former suit and by their omission to do so the second suit was barred by res judicata. The Privy Council held:

Bakhtaur Mulls (the Appellants predecessor) position therefore was that he was a prior mortgagee with a paramount claim outside the controversy of the suit unless his mortgage was impugned. Consequently to sustain the plea of res judicata it is incumbent on the Sahus (the second mortgagees) in the circumstances of this case to show that they sought in the former suit to displace Bakhtaur Mulls prior title and postpone it to their own. For this it would have been necessary for the Sahus as Plaintiffs in the former suit to allege a distinct case in their plaint in derogation of Bkhtaur Mulls priority.

4. After noting that nothing of the kind appears to have been done by the second mortgagees, the Privy Council overruled the plea of res judicata.

5. The law thus laid down in this leading case had been followed in numerous cases which it is unnecessary to quote. Applying that law counsels contention must; fail for the Petitioner had not impugned or sought to displace the title of Defendants 6 and 7 or postpone it to her own and there is no question of their title being concluded by the decree to exclude a plea on its basis in execution. Counsel sought to distinguish the Privy Council case by contending that Defendants 6 and 7 did not have at the time of the suit any fixity of tenure and could not therefore be equated to the position of a prior mortgagee. This makes no difference for the right of Defendants 6 and 7 was an interest in property and must be governed on this question by the same) principles as in a mortgage, for what was mortgaged to the Petitioner was the reversion subject to the lease.

6, There is another way of looking at the question. Under the terms of the decree neither Defendants 6 and 7 nor their interests in the properties are liable and the decree is therefore no bar to their objecting to the Petitioners attempt to sell their rights also in execution.

7. Counsel for the Petitioner next contended that his client might be allowed to sell the right, title and interest of Defendants 1 to 4 as such a step would not affect the leasehold of Defendants 6 and 7. For one thing the properties are sought to be sold as if they are unencumbered and as if Defendants 1 to 4 are the full owners and such a sale will undoubtedly prejudice the rights of Defendants 6 and 7 because they or their representatives are parties to the proceeding. For another there is no question of even limiting the sale to the right, title and interest of Defendants 1 to 4 because under Section 72, Land Reforms Act that had vested in the Government from 1st January 1970," free of encumbrances and their right had been limited to the compensation payable under Section 72A. Section 72F(5) requires the Land Tribunal concerned to pass ah order fixing, among other things, the compensation due to the landowner;, the amount due to the holders of encumbrances and the amount payable to the landowner after deducting the value of encumbrances, -, Section 72H(7) enacts that where any amount has been deducted for payment to the holders of encumbrances, it shall be paid by the Land Tribunal to the persons entitled thereto. In the face of these provisions there is no question of the Petitioner proceeding to sell the rights of Defendants 1 to 4 for that had become vested in the State and no longer belongs to them and there is also nothing for the Petitioner to enforce, for that vesting was free of encumbrances. The Petitioner is therefore left with the remedy of approaching the concerned Land Tribunal and receive whatever amount is available for her out of the compensation.

8. The conclusion is supported by decisions of the Supreme Court which had to consider the right of holders of mortgage decrees against estates that had vested in the State under enactments of which the provisions relating to vesting are in relevant particulars similar to the Kerala Land Reforms Act. In Krishna Prasad v. Gauri Kumari Devi : A.I.R. 1962 S.C 1464, the Supreme Court held:

In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment-debtor.

This decision was followed in Shivashankar v. Baikunth : A.I.R. 1969 S.C 971, which itself was noticed in Vidya Sagar v. Sudesh Kumari : A.I.R. 1975 S.C 2295. This last case was concerned with the executability of a decree for pre-emption obtained by the Appellants against their co-sharers and the aliences from them, in view of the U.P. Zamindari Abolition and Land Reforms Act which was brought into force subsequent to the decree and which provided for the vesting of all estates in the State free from encumbrances. Holding that the decree was incapable of executing their Lordships observed in the course of the discussion (page 2297):

It would have been possible to execute the decree only if the interests in the land as such survived in the proprietors. Land can be understood only with reference to the rights in the land and when the old rights give place to the emergence of new rights, a decree with reference to the old rights cannot be executed when that has already lapsed under the Act.

That principle which also underlies Section 73, Transfer of Property Act, applies to the present case.

9. The Petitioners contention therefore fails. It will be open to her to claim the amount admissible to her out of the compensation, from the authorities under the Land Reforms Act.

I dismiss the revision but without costs.