1. An important question that is posed before us in this revision application is what the executing Court would do in case two conflicting decrees are passed by two competent Courts on the same subiect matters. To avoid the situation of this type, two provisions viz. Section 10 and S, 11 have been incorporated in Civil Procedure Code. This revision petition which has arisen out of an order of the executing Court appears to be a peculiar one and of uncommon nature as a result of which a peculiar position has arisen. To appreciate the position that has been involved in this revision application it would be necessary on our part to narrate the facts of the case briefly which has been set out below.
1. The petitioner of this revision petition was the defendant, in Money Suit No. 11560 filed by the opposite party claiming a sum of Rs. 1,000 as damages for malicious prosecution in the court of Munsiff. Barpeta. The defendant contested the suit. On trial the learned Munisff decreed the suit for only a token sum of Rs. 50 in favour of the opposite party. The plaintiff felt himself aggrieved in decreeing such a token amount by the learned Munsif, preferred an appeal in the Court of Assistant District Judge. The said appeal was numbered as Money Appeal No. 25 of 1964. The petitioner who was the defendant not only contested the said appeal but he also preferred an appeal in the Court, of Assistant District Judge challenging the legality and validity of the decree and the said appeal was numbered as Money Appeal No. 22/64. In Money Appeal No. 22/64 as well as Money Appeal No. 25 of 1964 of the respective parties both the parties appeared and hotly contested both the appeals. The appeal preferred by the defendant, namely. Money Appeal No. 22 of 1964 was disposed of by Assistant District Judge No. 1 Shri G. C. Phukan on 7-12-68 whereby the learned Assistant District Judge allowed the defendant's appeal and dismissed the plaintiff's suit. The other Money Appeal No. 25 of 1964 was however heard by Shri R. C. Bora, Assistant District. Judge No. 2 at Gauhati. who by the order and decree dated 30-9-69, allowed the appeal of the plaintiff and decreed the suit, for a sum of Rs. 700 by modifyjng the decree passed by the learned Munsiff. Thus it is found that the above Money Appeal 'No. 25 of 1964 was disposed of about after nine months from the date of disposal of Money Appeal No. 22 of 1964.
2. It is really surprising that both plainitff and the defendant (i.e. the present petitioner and the opposite party) contested the matter in dispute in trial Court as well in appellate Courts tooth and nail, but it is not understood as yet as to why both the parties were silent in not bringing to the notice of the Court about the result of Money Appeal No. 22 of 1964 which was disposed of earlier while the appeal No. 25 of 1964 was taken up for hearing by another Assistant District Judge relating to the same subject-matter of the suit. It is however stated at the Bar that this fact might have been brought to the notice of the Court in course of the hearing of Money Appeal No. 25 of 1964 but it is not known as to why the matter was not pursued either by the party or by the Court itself at the time of disposal of Money Appeal No. 25 of 1964. It is further noted that even though there were two conflicting results in two different money appeals, neither party moved the higher court against the said two conflicting decrees passed by two competent courts on the same subject matter.
3. As Money Appeal No. 25 of 1964 was decreed in part in favour of the plaintiff, the plaintiff started an execution case for realisation of the decretal amount and the execution case was numbered as Money Execution Case No. 120 of 1972 in the Court of Munsiff at Barpeta. The petitioner who was the judgment-debtor, contested the said execution case by filing an objection Under Section 47. C. P. C. on the ground that the Money Appeal No. 22 of 1964 was decided in favour of the petitioner on 7-12-68 in consequence of which the suit of the Plaintiff was dismissed. The said decree being earlier in point of time, and as the plaintiff did not move the higher court against the said appellate decree, there is no scope for execution of the decree in M. A. No. 25 of 1964. Therefore, according to the petitioner judgment-debtor, the execution case that arose out of the appellate decree passed subsequently cannot take any precedence over the decree passed earlier and the subsequent decree being a nullity, there is no scope for its execution. In view of these two conflicting decrees. the learned executing court being unable to decide the legal aspect of the matter, referred the entire matter under Section 113 C.P.C. to this court, for necessary direction. The Division Bench of this Court by the order dated 30-11-75 held that the reference was incompetent as the decree sought to be executed was appealable. Consequently, the matter went back to the executing Court to dispose of the same in accordance with law.
4. The learned Munsiff being the ex-ecuting Court, on hearing the parties on legal points, by his order dated 6-9-76 came to the conclusion that the decree _ in Money Appeal No. 25 of 1964 is executable in law. The learned Munsiff therefore rejected the objection filed by the petitioner judgment-debtor and by the said order allowed the decree-holder to proceed with the execution case for realisation of the decretal amount. The learned Munsiff came to the conclusion that the executing Court is not competent to say that the decree in money Appeal No. 25 of 1964 is not executable because of the existence of a conflicting decree of Money Appeal No. 22 of 1964, when both the appeals were decided on merits and on contest. The petitioner has challenged this order in this revision petition.
5. Mr. A. M. Mazumdar, the learned Advocate General, Assam representing the petitioner in this case has submitted before us the following two legal questions, namely (a) if the subsequent decree is a nullity, the executing Court is competent to go behind the decree and pass the order holding that the decree is not executable: and (b) that the decree subsequently passed bv another appellate Court relating to the same subject matter which was once decided earlier by the competent court, cannot be made a subiect-matter of the execution proceeding in view of the provision of Section 11, C.P.C. In other words, the learned counsel submits that the subsequent decree in conflict of earlier decree is not executable in view of the provisions of Section 11, C.P.C.. because the earlier decree is the decree of dismissal.
6. As to the first proposition of law as urged by Mr. Mazumdar, the learned counsel for the opposite party has no dispute. The contention of Mr. K. Sarma, the learned counsel for the opposite party is mainly on the second count, namely, the decree cannot be held to be not executable by virtue of the provision of Section 11 inasmuch as the provision of Section 11. C.P.C.. is not attracted in the present nature of the case. According to Mr Sarma, the point involved is only relating to the existence of two conflicting decrees and the decree passed subsequently should take precedence over a decree passed earlier by the competent courts. However, the competence and jurisdiction to decide the said two money appeals by two different courts have not been challenged by any of the party.
7. Now let us consider firstly as to whether in its true meaning, the provision under Section 11. C.P.C.. has any application in this case. The rule in the Section is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot, be harassed aaain and again in various proceedings upon the same question. The doctrine of res iudicata results from a decision of the Court while estoppel results from the acts of parties themselves. The rule of res iudicata proceeds, on the ground of public policy; while the rule of estoppel proceeds upon the doctrine of equity. The theory of res iudicata is to presume conclusively the truth of the former decision while the rule of estoppel prevents a person from setting up what he call the truth. In this context we would like to refer a decision of their Lordships of the Supreme Court reported in AIR 1962 SC 338 (Badri Narayan v. Kamdeo Prasadl. In the said case A. B and C were candidates at an election. A was declared elected. B filed an election petition challenging the election of A. C also filed an election petition not only challenging the election of A but also claiming a declaration that he himself was duly elected. The Election Tribunal held that A's election was void but did not grant the declaration prayed for by C that he was duly elected. A then filed an election appeal to the High Court against the order setting aside his election. C also filed an election appeal against the order not declaring him as duly elected. Both the appeals were disposed of by one judgment confirming the order against A and declaring that C was duly elected. Separate decrees were prepared in the two appeals. A appealed to the Supreme Court only against the decree in C's appeal. The appeal was held to be barred by the principle of res iudicata by reason of his not having appealed against the appellate decree against him.
8. The bar of res iudicata therefore brings restriction upon the parties in the later occasion asking for another judgment on the subject-matter. It is because the earlier judgment on the same subject-matter in issue between the same parties is conclusive upon both the parties. In a decision as reported in AIR 1972 SC 1427 (Kani Ram v. Smt. Kazani) their Lordships of the Supreme Court have held that the general principles of res iudicata were held to be applicable to execution proceeding in the same suit even before the addition of explanation VII of Section 11. C.P.C. A decision, although it may not be res iudicata in certain cases, may still be a binding precedent,
9. The main around of attack of Mr. Mazumdar. the learned counsel for the petitioner, is that, the impugned order suffers from illegality and the learned executing Court has erred in law to allow the execution to proceed inasmuch as the decree so passed subsequently in Money Appeal No. 25 of 1964 is nothing but a nullity. The same is hit by the principle of res iudicata. In support of his contention the learned counsel has referred to us the following decisions as reported in AIR 1966 SC 1332 (Sheodan Singh v. Daryao Kunwar) : AIR 1960 SC 941 (Satyadhayan Ghosal v. Smt. Deo-rajin Debi): AIR 1970 SC 794 (Ferozilal Jain v. Man Mal) and AIR 1971 SC 1673 (Mstt. Jamshed Jahan Begam v. Lakhan-lal). In Sheodansingh's case their Lordships of the Supreme Court held (at D. 1339) :--
'...... Our conclusion on the question of res iudicata raised in the present appeals is ibis. Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed On some preliminary ground, like limitation or default in printing with the result that the trial court's decision stands confirmed, the decision of the appeal court, will be res iudicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so the decision of the appeal court will be res iudicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the, appeal Court does not result in the confirmation of the decision of the trial court given on the merits, as for example, where the appeal court holds that the trial court had no jurisdiction and dismisses the appeal, even though the trial court might have dismissed the suit on the merits. In this view of the matter, the appeals must fail, for the trial court had in the present case decided all the four suits on the merits including the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial court was confirmed with respect to the common issues as to title by the High Court. In conseauence the decision on these issues became res iudicata so far as appeals Nos. 365 and 366 are concerned and Section 11, Civil P. C. would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res iudicata, appeals Nos. 365 and 366 must fail.'
In Satyadhayan's case as reported in AIR 1960 SC 941 their Lordships of the Supreme Court while deciding the principle of Sections 11 and 105, C. P. C. held (at p. 9431:--
'The principle of res iudicata is based on the need of giving a finality of iudi-cial decisions. What it says is that once a res is iudicata. it shall not be adiudged again. Primarily it applies as between past litigation and future litigation. When a matter--whether on a question of fact or a question of law--has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit. or proceeding between the same parties to canvass the matter again. This principle of res iudicata is embodied in relation to suits in Section 11. C.P.C. but even where Section 11 does not apply, the principle of res Iudicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.'
The other two decisions cited above by the learned counsel are not very much relevant on the point which the present case requires our decision.
10. While replying to the contentions as raised by Mr. Mazumdar. Mr. K. Sarma, the learned counsel for the opposite party has submitted to us that the provisions of Section 11. C.P.C., is not strictly applicable in the present nature of the caae. The matter of controversy which involves in this case is due to the result of two existing conflicting decrees passed by two different competent courts. Shri Sarma submits that in such a case the decree subsequently passed must Prevail. Further contention of Mr. Sarma is that the petitioner could have raised the plea of res .iudicata at, the time of hearing the Money Appeal No. 25 of 1964 but as the said plea was not. raised. it must be deemed to have been waived by the petitioner and he cannot agitate the same for the first time before this Court. In support of his contention the learned counsel has referred to us the decisions reported in AIR 1935 All 645 (Sansarchand Lachhaman Das v. Dina Nath Dube) and two other decisions reported in AIR 1952 Trav-Co 203 (Kann-amma Unikali v. Krishna Vasanthi) and in AIR 1957 Ker 31 (Mundan Raman v. Kochukwnju Narayanan),
11. We have gone through the above decisions as referred to us by the learned counsel for the opposite party. The case cited in AIR 1952 Trav-Co 203 (supra) is on a different point and as such the same is not applicable in the present case. In that case the court interpreted, the provisions of Order 41, Rule 33,, C.P.C., and held:--
'Order 41. Rule 33 empowers the appellate court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. We think that this is a fit case in which we should exercise this power.'
12. The facts of Mundan Raman's case as reported in AIR 1957 Ker 31 (supra) are on different points. In the sairl case two suits were filed on different matters although the parties were same. But the facts are altogether different from the facts involved in the present case.
13. The decision of the Allahabad High Court in AIR 1935 All 645 (supra) is relating to two conflicting decrees passed by different courts anH also relating to the question of waiver of the plea of res .iudicata. But the cause of action and the issues of the two decrees were different relating to both the suits and therefore the decrees were held not to be in conflict. It was further held that as the cause of action and the issues were different the question of waiver of res judicata did not arise inasmuch as the parties could not raise the pica of res iudicata, in view of the two different causes of action and different issues. The following relevant portion may be quoted as under :--
'The contention of Sansarchand Lachhmandas is that by reason of the decree which he obtained in suit No. 729 of 1930, Dinanath's decree in suit No. 72 of 1927 has become ineffectual. It is contended that there are two conflicting decrees and therefore the last of such decrees should prevail. There is no doubt that the decree at Saharanpur in Sansarchand's suit was passed after the decree of the Calcutta High Court and the question which I have got to decide is whether the two decrees are conflicting or whether they relate to two different matters. It is not correct to say that the plea taken by Sansarchand is a plea of res iudicata strictly speaking. His contention must be deemed to amount to this, that on the principles underlying the plea of res iudicata which aims at avoiding multiplicity of litigation and at securing finality if the conflicting decrees have been obtained by parties from two different courts or even from the same court then the last one should be the effective decree between the parties and the first decree should be regarded as dead. The basis of this salutary rule is that if a Party who could raise the plea of res iudicata does not raise the same when an opportunity is given to him he must be deemed to have waived it. The plea of res iudicata is not one which affects the judisdiction of a court. It is a plea in bar and such a plea can be waived. When Sansarchand filed his suit in Saharanpur it is said that it was open to Dina Nath to plead that the suit was barred by res iudicata because of the decree that Dina Nath had obtained in the Calcutta High Court. I have therefore got to decide whether Dina Nath could with success have advanced the plea of res judicata. In an earlier portion of my iudgment I have taken some pains to describe at length the claim which was made by Dina Nath in the Calcutta suit and the claim that was made by Sansarchand before the Small Cause Court at Saharanpur. and I have come to the conclusion that the Calcutta suit comprised a claim for damages which was not in issue in the Saharanpur Court. The Calcutta suit further took into consideration a payment of Rs. 300 which was not dealt with in the Saharanpur suit and as such the cause of action and the issues in the Calcutta suit were different from the cause of action and the issues in the Saharanpur suit and it was not possible for Dina Nath to have pleaded before the Saharanpur court that the decree of the Calcutta High Court was res judicata. In this view there are no two conflicting decisions and it is not possible for Sansarchand Lachhmandas to argue that the Calcutta decree is incapable of execution.'
On the above facts and circumstances of the said case we are constrained to hold that the above decision is not. applicable in the present case at hand.
14. In course of his submission, the learned counsel for the opposite party has finally submitted that the principle of res iudicata is not applicable in the present case nor this is a case where it can be held that the decree is a nullity and inexecutable in law. The learned counsel has made an attempt to impress upon us the point that in any view of the matter the decree subsequently passed is a final decree as against which there was no appeal or a revision as the case may. be to the higher court. Therefore, the said decree is to be treated as final and the decree is executable in law. This contention of Mr. Sarma appears to be contradictory inasmuch as the plea of res iudicata appears to have been advanced before the appellate court in M.A. No. 25/64 as submitted at the bar. but the same was not pursued. The reason is not known to either of the parties. Therefore, it cannot be said that the party raisins the plea did waive that plea. Moreover, there cannot be any estoppel on the legal plea.
15. Now it can be seen from the rival contentions as set put above, that the main question that arises for our consideration is as to whether the decree subsequently passed in Money Appeal No. 25/64 is in either manner inexecutable in law or that the decree-holder is entitled to proceed with the execution case for realisation of the decretal amount awarded in Money Appeal No. 25 of 1964.
16. The principle of res judicata is to
make the finality of the litigation. There
fore, the irresistible conclusion that can
be arrived at is, that the final decision
of Money Appeal No. 22 of 1964 con
cludes the dispute between the parties
relating to the same subject-matter.
Therefore, subsequent decision is defi
nitely hit by the provision of Section 11,
C.P.C. The finality of the decision in
view of the iudgment and the conse
quent, decree passed in Money Appeal
No. 22 of 1964 cannot be lost sight of
nor can be brushed aside, though there
is a subsequent conflicting decree passed
by same other competent court in Money
Appeal No. 25 of 1964 relating to the
same subiect-matter between the same
parties. Therefore, the decree in conse
quence of the iudgment passed subse
quently in conflict of the decree of
Money Appeal No. 22 of 1964 of a com
petent Court is a nullity having no force
of law and as such the decree is not. ex
ecutable. The dispute between the par
ties having been finally decided in
Money Appeal No. 22 of 1964. which is
earlier in point of time must prevail.
With great respect we must say that we
are. however, unable to accept the broad
proposition of the said decision of Alla
habad High Court (supra) so far it re
lates to the question of giving preced
ence of the later decree over the former
17. Therefore, the conclusion that can be arrived at by us is to hold that the impugned order is liable to be set aside which we hereby do. We held that the decree in question is a nullity and the executing Court can go behind the decree to find out, as to whether the decree can be executable or not.
18. In the result, we allow this application and, set aside the impugned order passed by the learned executing Court. The rule is accordingly made absolute but we make no order as to cost.
B.L. Hansaria, J.
19. I agree.