Gopalakrishnan Nair, J.
1. This is an appeal from the judgment of the Subordinate Judge, Eluru, who, on appeal, upheld the decision of the District Munsif, Tanuku, dismissing the plaintiff's application for a final decree in a suit for recovery of a sum of money by sale of a certain parcel of land which had been offered as security to the plaintiff by the defendants. The property which was offered as security for the debt had been admittedly held by the defendants-respondents as washerman service inam. It is also common ground that this land being a service inam, falls within the mischief of Section 5 of the Madras Hereditary Village-offices Act, III of 1895 which prohibits its alienation. This prohibition is founded on public policy which, aims at preventing dissociation from the office if the emoluments attached thereto, for such dissociation would impair the efficiency of the service to be rendered and thereby injuriously affect the interest of the sections of the community intended to be benefited by the service. In spite of the statutory prohibition against alienation of the land in question, an ex parte preliminary decree for its sale was passed in favour of the plaintiff by the trial Court. No attempt was made by the judgment-debtors-defendants to get this decree reversed or modified in appeal. But when the decreeholder-plaintiff applied for a final decree, the objection was raised that the property in question was a service inam falling within the ambit of Section 5 of Act III of 1895 and that therefore no decree for its sale could be passed. This objection found favour with the Court of first instance which held in spite of the preliminary decree, it was entitled to decline to pass a final decree in view of the inalienability of the property. On appeal by the plaintiff, the Subordinate Judge, Eluru affirmed the decision of the, first Court. The aggrieved plaintiff has therefore come to this Court in further appeal.
2. The main contention advanced on behalf of the appellant is that the respondents-judgment-debtors are precluded by the rule of res judicata from raising the plea of inalienability of the property, in final decree proceedings. To this, the respondents' learned counsel answers: (i) that the statutory provision against alienation embodied in Section 5 of Act III of 1895 wholly deprives the Court of jurisdiction to pass a decree for sale of the property and that therefore the rule of res judicata cannot successfully be invoked; (ii) that the preliminary decree was obtained by the plaintiff ex parte and such a decree cannot operate as res judicata; (iii) that the preliminary decree not being an executable decree, cannot form the basis of res judicata. The other limb of the argument advanced on behalf of the respondents is that in a previous premature and unsuccessful Execution Petition (E. P. 73/55) preferred by the present appellant, the question of res judicata was not raised by him to combat the objection to executability effectively set up by the respondents herein and that consequently he cannot now be permitted to put it forward.
3. The contention that the bar of Section 5 of Act III of 1895 can be successfully raised even after a preliminary decree for sale of the property does not appear to be sustainable. Much Of the argument on behalf of the respondents is built on the circumstances that the statutory prohibition in Section 5 of Act III of 1895 is founded on sound public policy. This argument however overlooks the fact that the doctrine of res judicata is equally based on valid considerations of public policy. Besides, there is nothing in section II of the Code of Civil Procedure or in the general law bearing on res judicata to exclude its operation in a case like the present. It is perhaps unnecessary to deal with this aspect on first principles because the point appears to be authoritatively concluded by the derision of a Full Bench of this Court reported in Venkataseshayya v. Virayya, (1957) 2 Andh WR 137: (AIR 1958 Andh Pra I) (FB).
But this decision, which is strongly relied on by the appellant, is sought to be distinguished by the respondents' counsel on the ground that it did not deal with the case of an application for final decree, but with a subsequent suit filed by the village service inam holder to restrain the purchaser at an execution sale from interfering with his right and possession of the property. I am unable to see how this circumstance can make any difference in principle. The Full Bench clearly held that when a decree had been passed for sale of a village service inam land without any objection based on Section 5 of Act III of 189,5 having been raised in this suit, that decree barred the judgment-debt or from assailing its validity in a subsequent suit or proceeding on the ground of the inalienability of the land. In other words, the rule of constructive res judicata enacted in Explanation IV to section 11 C. P. C. stood in his way in seeking to reopen the previous decision or to obtain a relief which, if granted, would nullify that decision.
4. I am also unable to see any substance in the further contention that the Civil Court had no jurisdiction to pass a decree for sale of the property in question. It may be that the previous decision is violative of Section 5 of Act III of 1895. But such an error has to be corrected in the manner provided by Law. It is not a circumstance which would render the decree a nullity. It cannot possibly he argued that a Civil Court is devoid of inherent jurisdiction to decide whether the property in question is saleable or not. It is conceded that the Court which passed the decree in the present case had adequate pecuniary and necessary territorial jurisdiction. It was competent to take cognisance of the suit. Its jurisdiction to try the suit was not either expressly or impliedly barred by any law. The suit was unquestionably of a civil nature which the Civil Court which passed the preliminary decree could well take cognisance under Section 9 C. P. C.
The only objection raised by the respondents in this context is that the property directed to be sold was in truth an inalienable washerman service inam. We are not now concerned with what the truth of the matter was; we have only to consider the legal effect of the preliminary decree already passed. The question regarding the alienability of the property was a mixed question of law and fact which could well have been determined in the suit itself. It was not a factor which could deprive the Court of its inherent jurisdiction to try the suit. No doubt, if the Court lacked inherent, jurisdiction to try the suit, its decision would not be that of a competent Court and would not, therefore, operata as res judicata. But that surely is not the case here. In 1957-2 Andh WR 137 at pp. 145-146: (AIR 1958 Andh Pra I at p. 3) (FB) (supra) Subba Rao C. J. (as he then was) who delivered the opinion of the Full Bench, observed at pp. 145-146 (of Andh WR); (at p. 3 of AIR):
'The Court had admittedly pecuniary and territorial jurisdiction to entertain the suit to enforce the mortgage. It had also jurisdiction to decide whether the mortgage was valid or not having regard to the provisions of Act III of 1895. If the plaintiffs had raised the plea therein that the mortgaged properties were carpenter service inams and, therefore, the mortgage was invalid, the Court would have raised the relevant issue and decided whether the suit items were carpenter service inams and, if so, whether the mortgage was invalid. Such a decision would have been by a competent Court having jurisdiction to entertain the suit and, therefore, binding upon the parties and their representatives. Should it be held that a finding of the Court that the land was not a service inam on a specific issue raised before if. would not operate as res judicata between the parties in a subsequent suit, that question could never be finally decided, for, in every subsequent suit, that question could be raised between the parties on the ground that the Court in the earlier suit exercised jurisdiction which it had not or refused to exercise one which it had.
The principle that where a statute confers on a Tribunal jurisdiction subject to a condition, it cannot clutch at jurisdiction by deciding wrongly the existence of that condition, has no application to the decision of a Court in regard to questions that legitimately arise for decision in the course of a suit maintainable therein. If so much is conceded. I do not see any reason why the principle of constructive res judicata cannot he invoked in regard to the decision of a Court in such a suit. Explanation IV to Section 11 does not impose any such limitation. If the appellants who could have non-suited the plaintiff by raising the question of the inalienability of the carpenter service inam, did not raise it, by reason of that Explanation the said question must be deemed to have been constructively in issue in the suit.
When a decree was made, the Court must be deemed to have decided that the said property was alienable property and, therefore, the said decree would operate as res judicata in a subsequent suit, The same reasoning would also apply to the order of the confirmation of sale made in execution proceedings. The plaintiffs ought to have raised the plea that the items being carpenter service inams were not liable to, he sold. By confirming the. sale, the Court must be deemed to have held that the property was alienable and that order would operate as res judicata. To put it differently, a decision of a Court, either actual or constructive on an issue that arises in a suit or in execution proceedings would operate as res judicata in subsequent proceedings between the same parties and, on the basis of that principle, the decree obtained against the plaintiffs in the mortgage suit as well as the order of sale made in execution proceedings would be binding on the plaintiffs in the present suit.'
This decision seems to conclude the matter against the contesting respondents. The learned counsel for the respondents, however, relied upon the decision of a Single Judge of the Madras High Court in Adinarayana v. Chengiah, (1937) Mad WN 891: AIR 1937 Mad 918. But this decision did not deal with the question of res judicata. The main argument in that case appears to have been that an executing court cannot go behind the decree. The learned Judge pointed out in that context that an application for a final decree is not an application for execution and that what can be executed is a final decree and not a preliminary decree and therefore no question of an executing Court going behind the decree could possibly arise in that case. This is entirely different from deciding a question of res judicata, as has been advanced in the instant case.
In 1937 Mad WN 891: AIR 1937 Mad 918 the learned Judge mainly relied on the decisions in Lakshmanaswamy Naidu v. Rangamma ILR 26 Mad 31; Rajah of Vizianagaram v. Chellaiah, ILR 28 Mad 84; Ramachandra Snru v. Venkatalakshmi Narayana. 37 Mad LJ 65: AIR 1919 Mad 429 and Rajah of Kalahasti v. Ven-katadri Kao, ILR 50 Mad 897: AIR 1927 Mad 911 for the view that where alienation of certain property is prohibited on grounds of public policy, either under the general law or by statute, the executing Court can refuse to execute a decree which directs sale of that property. But the Full Bench decision in 1957-2 Andh WR 137: (AIR 1958 Andh Pra 1) (FB) (supra) dealt with each one of the above cases and came to the conclusion that in none of them the question of res judicata was decided. This goes to reinforce the conclusion that the decision in 1937 Mad WN 891: AIR 1937 Mad 918, cannot be regarded as authority for the position that the bar of res judicata is not applicable to a case like the present. It follows that 1937 Mad WN 891: AIR 1937 Mad 918 cannot avail the present respondents.
5. The next contention that hills to be noticed is that the rule of res judicata is not available to the plaintiff who has obtained only an ex parte decree. I do not think this contention can succeed. An ex parte decree is as much a decree on merits as a decree obtained after contest. The definition of 'decree' in section 2(2) C. P. C. equally comprehends both these classes of decrees. There is nothing in section 11 C. P. C. which renders it inapplicable to ex parte decrees. Reliance has been placed by the learned counsel for the respondents on the words 'heard and finally decided' occurring in section II C. P. C But these words do not seem to be of assistance to him. Where summons in the suit was duly issued to the defendant, but he did not take the opportunity of appearing and contesting the suit and the suit was decided against him in his absence, it cannot be said that it is not a case 'heard and decided' within the meaning of S. 11 C. P. C. vide Radhamohan v. Elize Jene Hilt, AIR 1947 All 147. A decision of a Division Bench of Bombay High Court in Baldevdas v. Mohanlal, AIR 1948 Bom 232 points even more strongly in the same direction. It states the law as follows:
'It is perfectly clear and by now well established that an ex parte decree can operate as res judicata because an ex parte decree is a decree on merits. The Court passing the decree hears the case on merits, finally decides it, and passes the decree. The only difference between an ex parte decree and a decree in invitum is that when an ex parte decree is passed, the defendant is absent; but an ex parte decree is as much on merits as a decision in invitum.'
In Markanda Mahapatra v. Kameswar Rao, AIR 1949 Pat 197 the facts were that in a suit by a mortgagee of a village granted as service inam, an issue to the effect that the tenure was a religious service inam and therefore inalienable was raised but the issue was not pressed as the defendant kept ex parte. The suit was decreed ex parte. The successor-in-interest of the defendant mortgagor brought a subsequent suit against successor-in-interest of the plaintiff-mortgagee for possession and accounts on the ground that the tenure was inalienable. The question that arose for decision was whether the previous ex parte decree against the mortgagor operated as res judicata in the subsequent suit. A division Bench of the Patna High Court held that the ex parts decree in the prior suit barred the subsequent suit on the doctrine of res judicata. It is not necessary to multiply authorities on this point because the position seems to be well established on authority as well as principle. The respondents' counsel therefore succeed on the ground that the decree against them was passed ex parte.
6. It is then contended by the learned, counsel for the respondents that the rule of res judicata does not apply to a preliminary decree because it is not executable. The executable decree being the final decree and the proceedings for obtaining a final decree being proceedings in the suit itself, it is argued, that the question of inalienability of the property held liable to be sold by the preliminary decree can be raised and determined in the final decree proceedings irrespective of the preliminary decree. This argument seems to assume that executability is the sine qua non of every decree and that executability and finality are synonymous expressions. This assumption is plainly erroneous and virtually contradicts the provisions of Section 2(2), section 97 and Order 34, Rule 5(3) of the Code of Civil Procedure. Section 2(2) C. P. C. defines a decree as a
'formal expression of adjudication which so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of matters in controversy in the suit and may be either preliminary or final.'
Thus, a preliminary decree is by express definition as much a decree as a final decree Section 97 says
'Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.'
The implication of this section is unmistakable. It is that a final decree cannot nullify, derogate from or jeopardise the validity and finality of a preliminary decree. Indeed, a final decree may be said to be but a machinery for the implementation of the preliminary decree. It cannot, in any manner, conflict with the preliminary decree. In tact, a final decree owes its existence to the preliminary decree. This position seems to be well settled. If it were otherwise, proceedings for final decree will partake of the character of an appeal from the preliminary decree or a review of it. Nothing would be more repugnant to the settled notions of law and procedure than this concept.
7. It is also well established that the principle of res judicata applies also us between two stages of the same litigation so that a Court having at earlier stage, decided the matter in one way will not allow the parties to reagitate the same matter again at the subsequent stage. Therefore, the argument that final decree proceedings constitute one stage of the suit, the anterior stage of it having culminated in the passing of a preliminary decree, does not carry the matter forward.
8. Dealing with Section 97 C. P. C. the Supreme Court in a recent decision in Venkata Reddy v. Pethi Reddy, : AIR1963SC992 pointed out:
'A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure us permit its reversal, modification or amendment. Similarly, a final' decision would mean a decision which would operate us res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. Section 97 C. P. C. clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree'.
This decision also pointed out that the circumstance that further proceedings are required to be taken for procuring the relief to which a party is held entitled by a decision is no test for not regarding that decision as final. It is thus a complete answer to the contention advanced by the learned counsel for the respondents.
9. It is finally argued for the respondents that because the appellant decree-holder did nut object to E.A.768/55 on the ground that the respondents' plea of inalienablity of the land in question was barred by the rule of constructive res judicata, he could not be permitted to urge it in the subsequent proceedings for final decree This contention also is devoid of force. E.A.768/55 was filed by the judgment-debtors-respondents in E.P.73/55 which was launched by the appellant-decree-holder for execution of the decree. At that time the appellant had not appreciated the need to obtain a final decree. He considered that the decree as it then stood could straightaway be executed. This attempt on his part was resisted by the judgment-debtors who filed E.A.768/55 raising two objections (i) that execution could not be allowed without the decree-holder obtaining a final decree; and (ii) the land in question being inalienable service inam, it could not be sold in execution.
The executing Court allowed E.A.768/55 holding that the plaintiff had to obtain a final decree which alone could be executed and the decree as it stood was not executable. Thus, the first objection raised by the judgment-debtors in E.A.768/55 prevailed. Regarding the second objection as to the non-alienability of the land, the Court came to the conclusion that it was not proved by the defendants (present respondents) that the land was an inalienable service inam. It was in spite of this finding which was in favour of the plaintiff that E. P. 73/55 was dismissed. The argument now is that the plaintiff did not contend in E.A. 768/55 that the present respondents were not entitled to raise the question of non-alienability of the land because that plea was barred by the rule of constructive res judicata. Suppose this specific objection was taken by the present appellant in E.A.768/55. Even then, the result would only have been a finding in his favour on the question of saleability of the land. This result was achieved even otherwise, for, as I already slated, the Court rejected the plea of the defendants that the land in question was inalienable.
In any event, on the question of the need to obtain a final decree, E.A.768/55 would have been allowed and E.P.73/55 dismissed. The result would therefore have been the same, even if the plea of res judicata against the present respondents was raised and upheld in those proceedings. The sole basis of the decision in E.A.768/55 and E.P.73/55 was that the plain-tiff-decree-holder had not obtained a final decree. It was unnecessary to go into any other aspect. In the circumstances, I am unable to see now the omission to raise the plea of res judicata in E.A.768/55 could preclude the plaintiff-appellant from raising it at a later stage, Even without the aid of the doctrine of constructive res judicata, the plea of non-alienability raised by the defendants in E.A.768/55 was negatived by the Court. If this finding is taken to be a decision it was in favour of the present appellant.
It is the matter decided that is res judicata and not the reason which led to the decision. A plea subsequently advanced which does not run counter to the decision already made but which, on the other hand, goes to support and strengthen it, is not hit by the rule of constructive res judicata. The plea raised by the appellant does not, in any manner, challenge or conflict with the correctness or validity of the orders passed in E.A. 768/55 or E.P. 73/55 for that matter It seems to me therefore idle to contend that the appellant was precluded by the provisions of Explanation IV to Section 11 C. P. C. from raising the plea of res judicata in the final decree proceedings in answer to the challenge made by the respondents to the validity of the preliminary decree.
10. In view of the foregoing this Second Appeal is allowed with costs throughout. No leave.