1. This appeal raises at least one very interesting question of law about which I feel considerable doubt, but I do not think I should gain anything by taking time to consider my judgment. I am glad to think that my decision can be reviewed, if so desired, under the Letters Patent.
2. The action is brought by the plaintiff for possession of certain property which belonged to her husband as a separated Hindu. Her husband died in 1904. She brought a suit for possession against the defendant in 1907 and succeeded in the first Court. That judgment was affirmed by the Appellate Court in November 1907. The defence had been that the land had been given orally to the defendant by the plaintiff's husband. That defence failed. It was also alleged that the defendant had been in continuous possession since 1895, but of course that would have given the defendant no right in itself. The judgment of the Appellate Court was appealable to the High Court but was not appealed against. That is a decision between the present plaintiff and the present defendant, that the plaintiff was entitled to the property in question and was also entitled to immediate possession in 1907. The question of title, therefore, between the parties is res judicata. The plaintiff applied for execution of the decree which had been given in her favour in the Court of first instance in September 1913. That application was not unnaturally rejected by the Munsif on the 10th of January 1914 on the ground that it was made more than three years after the decree and was, therefore, time-barred. Between 1907 and 1913 something appears to have happened to which I will refer later in my judgment. Upon her application being thus rejected, the plaintiff brought this suit on the 26th February 1914 and obtained a decree for possession in her favour on the 28th of April 1914 in the Munsif's Court. That decision was reversed in appeal by the District Judge on the 18th of June 1914, and from that latter decision this appeal is brought.
3. Now, the plaint in this, suit undoubtedly alleged a cause of action founded upon the decree of 1907. It also alleged, for some reason or another, a right of action accruing in 1905. That was clearly wrong because any cause of action anterior to the judgment of 1907 was merged in the judgment. It also alleged in paragraph 2, that the plaintiff could not obtain possession within three years of the decree, and it did not allege that the plaintiff had in fact been in possession at anytime between 1907 and the commencement of this suit. So that when the case came before the Court of first instance, the sole cause of action alleged, which the defendants had any reason to anticipate would be urged against them, was the previous decree. However, as appears from the judgment of the learned Munsif and from the extracts of evidence read by the respondents Counsel to me, it happened that during the hearing of the suit, five days prior to the decision, a witness gave evidence that the plaintiff had been in possession of the land in dispute a year after the decree, viz., in 1908. It is perfectly true, as I have pointed out, that no reliance had originally been placed by the plaintiff upon that fact. It must have taken the defendants and their Pleaders by surprise, and it was clearly a matter in which in justice to the defendants (if the defendants and their Pleaders had desired it) they ought to have been given any further opportunity which they reasonably asked to meet that further allegation. They do not' appear to have done so, but one of the defendants Dharam Singh, himself went into the witness-box and apparently contradicted the witness. The learned Munsif was unable to accept the evidence of this defendant and gave excellent reasons for accepting the evidence given by the witness to whom' I have referred, and he held as a fact, after hearing the evidence on both sides on a point which, as I have said, had not been raised in the plaint, that the plaintiff had been in possession of the land within 12 years, viz., in 1908. In my opinion, if that is true, it was a satisfaction of the decree and a fresh cause of action would accrue to the plaintiff, if at any time subsequent to that the defendants re-took possession. It was alleged by the same witness (to whom I have referred) called by the plaintiff, that the defendants did re-take possession, although that statement does not appear in the learned Munsif's judgment but was read to me by the respondents' Counsel. Now there are cases, no doubt, in which parties are taken by surprise and in which it is unjust to allow their rights to be defeated by proof of matters which are not alleged and which they have no opportunity of meeting. On the other hand it is undesirable in the interests of justice, where no injustice will otherwise be done to anybody, that a Court should wilfully shut its eyes to relevant facts which are proved in the course of the hearing, raising a cognate though different cause of action to that originally relied upon by the plaintiff. Everybody knows that it may occur that in the early stages of a case, all the facts are not known to the Pleader who draws out the plaint, and every risk of injustice can be avoided by allowing an adjournment, by raising the point on appeal, or by penalising the successful party in costs. In this particular case the defendants appealed. Upon the hearing of the appeal it was open to them to raise any question of law or to point out to, the Appellate Court any unjust consequences which had ensued to them arising out of the admission of the evidence to which I have referred, and the finding at which the learned Munsif arrived. They advanced six grounds of appeal but they took no point about this alleged injustice. The finding of fact to which I have referred is not dealt with at all in the judgment of the lower Appellate Court and must be taken, therefore, not to have been overruled. It, therefore, stands as a finding of fact by which, I am bound, as to which it would be a great misfortune, in my opinion, if I were not entitled to take notice of it, and which, in my opinion, entitled the plaintiff to succeed. I do not think that lander the circumstances of the case, I should be doing right if I sent the case back or referred any further issue on this point. On that single ground, therefore, I allow this appeal and give judgment for the plaintiff. To put the matter in right form I re-settle an issue under Order XLI, Rule 24, to the following effect: 'The plaintiff, while in possession of the land in question in 1908, was wrongfully dispossessed by the defendant' and I hold that the plaintiff is entitled to succeed on that ground.
4. There is, however, another point to which I have already referred which is raised by this appeal, namely, even if the plaintiff was not entitled to have the fact of physical possession in i 908 found in her favour in this suit and to recover judgment upon that fact alone, whether she is not entitled to sue as she originally did, and to succeed, upon the decree of 1907. That is a question which is by no means free from difficulty. There has been a considerable amount of discussion upon it in one form or another and some divergence of judicial opinion, but I do not think it desirable to go at length through all the decisions on the point. I would first refer to a decision by Wilson, J., in 1881 reported as Attermoney Dossee v. Hurry Doss Dutt 7 C. 74; 9 C.L.R. 357; 4 Shome. L.R. 192 which commends itself to my judgment and to certain observations contained in a recent judgment of two Judges of the Calcutta High Court reported as Kali Charan Nath v. Sukhada Sundari Debt 30 Ind. Cas. 824; 20 C.W.N. 58; 22 C.L.J. 272. Most, if not all, of the cases are set out in that judgment. The passage to which I would refer is at the end of the judgment on page 62, being a passage cited from the judgment by Baron Parke in Williams v. Jones 13 M. & W. 628; 2 D. & L. 680; 14 L.J. Ex. 145; 53 E.R. 262; 67 R.R. 767: The principle is, that, where a Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.' The Calcutta High Court goes on to say: 'No mischief can result from the acceptance of this principle, if it is adopted subject to the qualification recognized in modern English Law, viz., that an action is permissible only where the judgment cannot be enforced in some other way.' The only other case I need refer to is a decision of the Chief Justice of Bombay reported as Mancharam v. Bakshi Sahib 6 B.H.C.R. 231 at p. 234. In that case the Chief Justice appears to me to have recognized the principle that judgments and decrees may be sued upon when it is the only practicable remedy open. Now I take my stand upon the broad principle that a judgment, certainly in a contract case, I think in all cases, is a contract of record. By the comity of nations, most countries recognize the judgments of foreign countries and give effect to them by allowing suits to be brought upon them, provided they are delivered by Courts of competent jurisdiction, acting within that jurisdiction, and lay down no principle repugnant to the policy of what I may call the domestic country. It would appear that domestic judgments ought to have at least the same force as foreign judgments. It would also appear from a decision which was much relied upon by the respondents' Counsel reported as Fakirapa v. Pandurangapa 6 B. 7 that countless actions have been brought at any rate in Bombay on Small Cause Court judgments or decrees. It is, therefore, as it seems to me, difficult to hold that a suit, upon a domestic judgment of some kind or another, is not cognizable under the Code in this country. Some limit, of course, there must be and it is obvious that whichever way this case is decided, there must be some conflict of what I may call equitable doctrines.
5. The period for enforcing a decree by Article 182 of Act IX of 1908 is three years and it is urged with great force that to give effect to a suit upon judgment brought within 12 years under Article 122 is directly in conflict with Article 182. On the other hand to refuse to give effect to a suit upon a judgment which has resulted in a decree for the recovery of possession of land after the expiration of three years would be in conflict with Article 122 and also, as was pointed out by the appellant's Counsel, with Section 28 of the Limitation Act. It is not immaterial that the Limitation Act itself in Article 122 recognizes--of course it does not enact--the admissibility of judgments obtained in British India as a cause of action under the Code. Mr. Agarwala, for the respondents, argued with great force that there was a wide distinction between a judgment and a decree. So there is I am of opinion that the word judgments' contained in Article 122 means decrees'. The word obtained' is not really applicable to the reasons which a Judge gives in his judgment; it is more applicable to the decree which a successful party gets in his favour and I think that in two places in Section 5 of the Limitation Act the word 'judgment' is used in the sense in which 'decree' is defined by the Civil Procedure Code.
6. Now the question still remains, whether there is anything in the Code itself which indicates that such suits are not admissible in this country. Before I refer to the sections which are relied upon, I would observe, what I have already pointed out, that if the Code did contain anything expressly or impliedly excluding from the consideration of- the Courts in this country suits upon judgments, then for many years past some if not all of the High Courts in this country have been decreeing suits upon judgments without any jurisdiction at all. The first section relied upon is Section 11 and at first sight it would seem clearly to prohibit the re-litigation of any question which had already been determined in any suit, that is to say, it seems to me to go further than the principles of res judicata founded upon the Duchess of Kingston's case 34 H.L. Jo. 655; 20 Howell St. Tr. 537; 2 Sm, L.C.731 and reads as if no party, not even a plaintiff, can sue upon any matter which has been determined. I think the answer is, that the plaintiff, in such a case as this, is not suing upon the same cause of action; he is alleging that he has obtained judgment and that the defendant is under a legal obligation to him under that judgment and that obligation arises out of matters subsequent to those litigated in the original suit. A decree determines questions between parties in litigation at the commencement of the suit; the plaintiff here is relying upon something in his favour at the end of the suit and independent of the questions originally litigated. Indeed questions originally litigated cannot be re-considered in the suit upon the decree and that is all Section 11 provides.
7. Section 12 was also relied upon and I, therefore, refer to it but it is obvious that only relates to cases where the plaintiff is in default under the rules contained in the Schedule or has brought a suit and has been nonsuited, and it does not bear upon the question now before me. Lastly, Section 47 has been relied upon, and indeed it has formed in many judgments dealing with this matter a prominent subject of discussion under the name of Section 244 of the old Code. As the section now stands, it reads: 'All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a suit.' To my mind the question whether a judgment can be sued upon in a Court of co-ordinate jurisdiction or not, is a totally different question to that which is dealt with by this section. Such a suit does not and could not relate to the 'execution, discharge, or satisfaction of a decree' and with great respect to the Judges who have dealt with this question, this section, in my opinion, has nothing whatever to do with a suit of the present nature.
8. Finding, therefore, nothing in the Code which prohibits the entertainment of such a suit, and finding that suits have been entertained over and over again in one form or another, and finding that the period for enforcing this decree has expired and that, therefore, the plaintiff has no other practicable remedy, I think the plaintiff was entitled to bring the present suit on the second ground as well.
9. I, therefore, allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The plaintiff will get her costs in all Courts.