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Ushadevi Balwant Vs. Devidas Shridhar - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1973 of 1954
Judge
Reported inAIR1955Bom239; (1955)57BOMLR275; ILR1955Bom546
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantUshadevi Balwant
RespondentDevidas Shridhar
Appellant AdvocateV.S. Desai, Adv.
Respondent AdvocateV.M. Tarkunde, Adv.
Excerpt:
.....that the court has constructively decided the issue, the law does not only not permit a party to raise a contention which has already been decided, but it also prevents a party from raising a contention which he could have raised' and has failed to raise. it is not disputed that if the principle of constructive 'res judicata' were to apply, the petitioner would not be able to challenge the execution proceedings on a ground which she could have put forward earlier and which she failed to do. i fail to understand on what principle an exception can be made to the principle of constructive 'res judicata' when we are dealing with an issue of juris-diction. it is difficult to understand why a similar finality cannot be given by the fact that the petitioner failed to raise that contention and..........that the court has constructively decided the issue, the law does not only not permit a party to raise a contention which has already been decided, but it also prevents a party from raising a contention which he could have raised' and has failed to raise.it is not disputed that if the principle of constructive 'res judicata' were to apply, the petitioner would not be able to challenge the execution proceedings on a ground which she could have put forward earlier and which she failed to do. what is urged by mr. desai is that the principle of constructive 'res judicata' does not apply when the question of jurisdiction has been raised. i fail to understand on what principle an exception can be made to the principle of constructive 'res judicata' when we are dealing with an issue of.....
Judgment:
ORDER

1. There was a compromise decree between the opponent, the landlord, and the petitioner, the tenant, on 16-9-1950. By this compromise decree the petitioner agreed to vacate the premises in suit on or before 31-1-1952. As she failed to do so, the opponent applied for execution on 1-2-1952, and the executing Court ordered possession. The petitioner contended that the compromise decree had created a fresh tenancy and that tenancy was protected by the Rent Act. That contention was rejected by the executing Court.

Against that decision the petitioner appealed to the District Court. The District Court dismissed the appeal. She came to this Court in revision and the revision application was also dismissed, and the High Court directed the executing Court to give effect to the warrant of possession which it had already issued. As the warrant of possession had expired, a fresh warrant of possession was issued by the executing Court and at that stage the petitioner contended that the decree was a nullity as the Court that passed the decree had no jurisdiction.

The trial Court rejected the contention of the petitioner. The petitioner appealed to the District Court. That appeal was dismissed and she has now come in revision.

2. The first question that has got to be decided 'in limine' is whether the petitioner is entitled to raise this contention at this stage. Now, it is clear that it was open to the petitioner to raise the contention that the decree was a nullity when she put forward the contention that the decree had created a new tenancy. She was challenging the execution proceedings taken out by the opponent and the clear challenge to this execution proceedings would have been want of jurisdiction in the Court which passed the decree.

The petitioner did not choose to challenge the darkhast on that ground. She appealed from the decision of the executing Court to the District Court and there also she did not put forward this contention. She came to the High Court and in the revision application also her challenge to the execution proceedings was limited to one ground, viz. that the compromise decree had created a tenancy which was protected by the Rent Act.

Now, it is well settled that Section II, Civil P. C. is not exhaustive and the principle of 'res judicata' applies to proceedings other than suits referred to in Section II. It is equally well settled that the principle of 'res judicata' applies to execution proceedings. The principle underlying 'res judicata' is that there must be a finality to litigation and the finality is arrived at not only by Court actually deciding the issue but also by the law taking the view that the Court has constructively decided the issue, The law does not only not permit a party to raise a contention which has already been decided, but it also prevents a party from raising a contention which he could have raised' and has failed to raise.

It is not disputed that if the principle of constructive 'res judicata' were to apply, the petitioner would not be able to challenge the execution proceedings on a ground which she could have put forward earlier and which she failed to do. What is urged by Mr. Desai is that the principle of constructive 'res judicata' does not apply when the question of jurisdiction has been raised. I fail to understand on what principle an exception can be made to the principle of constructive 'res judicata' when we are dealing with an issue of juris-diction. Mr. Desai says that if the Court that passed the decree was without jurisdiction, the decree is a nullity and the executing Court cannot execute that decree, and if there is inherent want of jurisdiction in the executing Court, that contention can be raised at any stage.

Now, it cannot be disputed that if the High Court had held that the Court had jurisdiction, there would have been a finality as far as that decision went and it would not have been open to the petitioner again to raise that contention. It is difficult to understand why a similar finality cannot be given by the fact that the petitioner failed to raise that contention and the High Court constructively decided that the Court had jurisdiction to execute the decree.

Nobody suggests that if the executing Court had no jurisdiction to execute the decree, the consent of the parties could have conferred such jurisdiction. But the position is that there is a decision not actual but constructive and that decision is that the executing Court has jurisdiction to execute the decree. Therefore in the eye of the law the Court has already decided that the executing Court is a Court with jurisdiction, and if that is the position, I see no reason why the petitioner should be allowed to raise that contention over again in this revision application.

I can understand a case where a suit has been decreed and the defendant does not raise the question of jurisdiction at the trial and when the decree is sought to be executed he raises the question of jurisdiction and contends that the decree is a nullity. It could not then be urged against him that because he did not raise the question of jurisdiction at the trial he is barred from raising it in execution proceedings. The position there would be that he is for the first time challenging the decree itself, and if the executing Court has no jurisdiction, the mere fact that he did not challenge the maintainability of the suit before the Court which disposed of that suit should not prevent him from raising the question in execution proceedings.

But here the constructive decision is in execution proceedings itself. As I said before, in the eye of the law it must be deemed that the petitioner raised the question of jurisdiction and that question was decided against her. What the petitioner really wants is that she should be allowed to challenge the execution proceedings piece-meal. She challenged it on one ground on the last occasion, she failed, and she now wants to challenge it on another ground.

The principle of finality at least in this country should have greater weight in execution proceedings than even in a trial of a Suit. It is notorious how long and wearily execution proceedings are dragged on, and if the Court refuses to give effect to the principle of 'res judicata', it would be open to a judgment-debtor to raise the issue of jurisdiction at any stage of execution proceedings realising that the other objections that he has taken have failed.

3. Now, the only direct decision to which my attention has been drawn is the decision in. --'Sundaresan v. Venkatesiah', AIR 1949 Mad 196. That is a judgment of a single Judge Horwill J. The learned Judge there held that an order passed without jurisdiction in an earlier proceeding or at an earlier stage in the same proceeding would not operate as 'res judicata' in a subsequent proceeding or at a later stage of the same proceeding! Now, with respect to this learned Judge, even he has not laid down that an order passed without jurisdiction cannot become 'res judicata' in the same proceeding at the same stage.

In other words, the learned Judge has not held that if at the same stage of the execution proceedings a contention is not raised with regard to jurisdiction, that contention could be raised later. Now, on the facts before me, the stage of the execution proceeding in which the first objection was taken by the petitioner is the same as the present stage where the objection as to jurisdiction is taken by the petitioner. The stage was and is when a warrant of possession has been ordered. That warrant of possession was challenged in the first proceedings and it is being challenged now.

According to Mr. Desai if his contention was right, even at the same stage in an execution proceeding it is open to the judgment-debtor to challenge the jurisdiction of the executing Court although he did not do so earlier when he had an opportunity of doing so and could have done so. In effect and in substance it really comes to asking this Court to review its decision on the earlier civil revision application, because when one analyses the situation, what the petitioner really wants this Court to do is that although this Court on the last revision application held that the execution proceedings were proper and maintainable, I should now hold on another civil revision application that those execution proceedings were not proper because the executing Court had no jurisdiction to execute the decree.

In my opinion, therefore, even if the decision of Horwill J. is right, it does not go as far as Mr. Desai would want me to hold. It would only apply to a case where the stages of execution proceedings were different and the question may well arise then whether the judgment of Horwill J. should be followed. As far as the present case is concerned, it is unnecessary to decide the correctness of the judgment of Horwill J.

4. I, therefore, hold that as this objection is being taken at the same stage of the execution proceedings and as this objection was not taken earlier when it could have been taken by the petitioner, it is not open to the petitioner to do so now. In view of this, it is unnecessary to consider whether on merits Mr. Desai is right when he contends that the execution proceedings should have been filed in the Small Cause Court at Poona and not in the Court of the Junior Civil Judge. His contention is that under the Rent Act the only exclusive Court in which the execution proceedings could be maintained is the Small Cause Court at Poona and not the Court of the Junior Civil Judge.

5. The result is that the revision application fails. Rule discharged with costs. Writ to be sent down to the executing Court forthwith.

6. Rule discharged with costs on the stay application.

7. Rule discharged.


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