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Shankar Vishnu Gokhale Vs. Raghunath Hari Dharap - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case Number Second Appeal No. 595 of 1911
Judge
Reported in(1912)14BOMLR854; 17Ind.Cas.205
AppellantShankar Vishnu Gokhale
RespondentRaghunath Hari Dharap
Excerpt:
.....decree-rule in harriot v. hampton and its limitations-execution had under first decree-refund of money recovered in execution conformably with the fist decree-a party executing the decree knowing that he had no right to it-res judicata.;in the year 1899 r, who claimed to be the sole proprietor of a trading firm, brought a suit against g for rs. 2,013 odd due to the firm, r's uncle d was added by the court as a co-plaintiff, and a decree was jointly passed in favour of r and d on 10th november 1900. this decree, however, did not define the respective interests of r and d inter se. shortly afterwards, d filed a suit against r for partition of family property owned by the firm and consisting of moveable and immoveable properties, and also outstandings valued in a lump sum at rs. 9,000,..........upon the case of marriot v. hampton (1797) 7 t.r. 269 which is authority for the position that money recovered under compulsion of legal process cannot ordinarily be recovered back. this case and the extent of its authority in india were noticed by the privy council in sharma purshad roy chowdery v. hurro purshad roy chowdery (1865) 10 m. i. a. 203. their lordships there say 'there is no doubt that, according to the law of this country-and their lordships see no reason for holding that it is otherwise in india-money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force ; but this rule of law rests, as their lordships apprehend, upon this ground, that the original decree or.....
Judgment:

Narayan G. Chandavarkar, Kt., Acting C.J.

1. In the suit of 1899 there was no doubt an issue framed, raising the question whether the present respondent Hari, who was plaintiff therein, could sue alone to recover the debt in dispute from the defendant in that suit. And the Court trying it found that he could not sue alone and that Damodar, father of respondents 2 to 5, who was defendant 2 in that suit, had the right to be co-plaintiff therein. That finding was recorded upon the ground that the debt sued for was a debt due to a partnership of which Hari and Damodar were co-partners. That finding, however, was arrived at only for the purpose of the defendant sued in that litigation. But the Court did not, indeed was not, called upon to decide finally what the respective interests of Hari and Damodar inter se were as to the amount recovered from the debtor of the partnership and whether either Hari or Damodar was entitled as between themselves to the whole or any portion of the decretal debt. In the second suit, which was brought in 1900 for partition by Damodar against Hari, the question left undecided in the previous suit was raised in respect of the same partnership and it was found that Damodar was not entitled to any share in the partnership which formed part of the properties alleged by Damodar to be the joint properties of himself and Hari, No doubt, the ground on which the adjudication in the second suit went was that Damodar was not a co-partner of Hari because he was not a co-parcener. This finding must be regarded as the final and decisive finding governing the jural relations of the parties for two reasons : first, it settled the interest between Damodar and Hari, which the judgment in the suit of 1899 had left undecided, and secondly, even assuming that that judgment had settled what those interests were, Damodar having failed to plead that settlement as resjudicata in the second suit, it is the adjudication in the second suit that must prevail as finally deciding the issue of title as between the parties. From whichever point of view we look at the question, Damodar was not entitled to recover any share in the money paid by the defendant in the suit of 1899 in execution of the decree therein. And having recovered it under compulsion of law while the decree in the second suit against him had come into existence, he is liable to restore the money, recovered by him knowing that he had no right to it.

2. The decree must therefore be confirmed with costs.

Batchelor, J.

3. I am of the same opinion. It is to be observed that the only point which was decided in Suit No. 694 of 1899 was that Damodar was entitled to be brought on the record as a plaintiff. It may be that, for the purpose of deciding that point, the question was entered upon and considered whether Damodar had any interest in the partnership. But the only decision as to what interest Damodar had in the partnership is the decision contained in the decree in the later Suit No. 71 which is a decision that Damodar has no such rights at all. It may be pointed out that this later decision was subsisting, had in fact been subsisting for nearly two years, when this application for execution was made. In the view, therefore, which I take of these two decrees it would not appear that there is any real inconsistency between them, because the later decree and that alone decided the question now in issue as to what interest, if any, Damodar had in the partnership. But even supposing that that decision could only be arrived at by overriding what was decided in Suit No. 694,I should still be of opinion that the later decision must prevail to govern the present rights of the parties. Upon this point the appellant relied upon the case of Marriot v. Hampton (1797) 7 T.R. 269 which is authority for the position that money recovered under compulsion of legal process cannot ordinarily be recovered back. This case and the extent of its authority in India were noticed by the Privy Council in Sharma Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (1865) 10 M. I. A. 203. Their Lordships there say 'There is no doubt that, according to the law of this country-and their Lordships see no reason for holding that it is otherwise in India-money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force ; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded....'

4. It appears to me that those words are perfectly applicable to the present facts if we suppose that the decree in the later suit had the effect of setting aside or superseding the decision in the earlier suit.

5. Reference may be made also to the case of Jogesh Chunder Dutt v. Kali Churn Dutt ILR (1877) Cal. 30 where the majority of the Full Bench took a similar view of the effect and operation of Marriot v. Hampton and Ward & Co. v. Wallis [1900] 1 Q.B. 675 is further authority for limiting the extent of the applicability of this latter case. There Mr. Justice Kennedy says ' that there must be bona fides on the part of the party who has got the benefit of his opponent's payment in order to bring the principle laid down in that case into force, and that if the person enforcing a payment under legal process has therein taken an unfair advantage or acted unconscientiously, knowing that he had no right to the money, the principle laid down in Marriot v. Hampton may not prevent the defendant from recovering the money back.'

6. It seems to me that these words are of application to the present facts where as I have noticed the decree denying Damodar any rights in this co-parcenary had been existing for about two years when this application to execute was instituted.

7. In fine I base my decision on the view that, whatever authority was by the earlier decree conferred on the appellant for the recovery of the money, was obliterated and superseded by the later decree, which was in force when this application for execution was made.


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