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Sadhu Charan Mohanty and anr. Vs. H. Naik, Official Liquidator, Puri Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberAppeal No. 6 of 1960
Judge
Reported inAIR1964Ori121
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Orissa High Court Rules - Rule 1
AppellantSadhu Charan Mohanty and anr.
RespondentH. Naik, Official Liquidator, Puri Bank Ltd.
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateU.N. Rath, Adv.
DispositionAppeal dismissed
Cases ReferredSiba Prasad Misra v. Mt. Nurabati
Excerpt:
.....1996 (2) glt 246, are not good law]. - nurabati, 14 cul lt 57 :(air 1949 orissa 37). but as is well known the principle of res judicata cannot be affected, in any way, by any subsequent decision of this full bench overruling the principle laid down in the former decision......money lenders act, but the learned judge held that this point was concluded by a previous division bench decision of the patna high court between the same parties, reported in hare-krishna mahanti v. puri bank ltd., 11 cut lt 12 : (air 1945 pat 281), where it was held that neither section 10 nor section 11 of the orissa money lenders act will be available to the judgment-debtors. that decision being inter parties will operate as res judicata. before the learned single judge it was contended that the principle laid down in the aforesaid patna decision was subseqnently overruled by a full bench decision of this court reported in siba prasad misra v. mt. nurabati, 14 cul lt 57 : (air 1949 orissa 37). but as is well known the principle of res judicata cannot be affected, in any way, by any.....
Judgment:

Narasimham, C.J.

1. This is an appeal under the Orissa High Court Order against the judgment of Hon'ble Barman, J., (Company Judge) dismissing an application filed by the judgment-debtors against the execution of the decree passed against them, for realisation of a sum of Rs. 7180-15-3. The main objection to the execution of the decree was based on Section 11 of the Orissa Money Lenders Act, but the learned Judge held that this point was concluded by a previous Division Bench decision of the Patna High Court between the same parties, reported in Hare-krishna Mahanti v. Puri Bank Ltd., 11 Cut LT 12 : (AIR 1945 Pat 281), where it was held that neither Section 10 nor Section 11 of the Orissa Money Lenders Act will be available to the judgment-debtors. That decision being inter parties will operate as res judicata. Before the learned single Judge it was contended that the principle laid down in the aforesaid Patna decision was subseqnently overruled by a Full Bench decision of this Court reported in Siba Prasad Misra v. Mt. Nurabati, 14 Cul LT 57 : (AIR 1949 Orissa 37). But as is well known the principle of res judicata cannot be affected, in any way, by any subsequent decision of this Full Bench overruling the principle laid down in the former decision.

2. Mr. Pal then contended that when Miscellaneous case No. 5 of 1956 was first registered before the learned Single Judge he had raised an objection on the ground of limitation and that this matter was then referred to a Division Bench consisting of the learned Company Judge and Justice J. K. Misra who by their judgment dated 6-5-1960, held that the application was not barred by limitation. Mr. Pal contended that this view on the question of limitation was incorrect but we find that this reference to the Division Bench was made by the Chief Justice under proviso (b) to Rule I of Chapter III of the Orissa High Court Rules, Vol. I and being a decision of the Division Bench it is binding on us. If the petitioners felt aggrieved by that decision they should have again come up by way of appeal which according to Mr. Rath (for the respondent) lay, or by way of special leave if there was no right of appeal. We would, therefore follow the decision of the Division Bench and hold that the application was not barred by limitation.

3. The appeal is dismissed with costs.

Misra, J.

4. I agree.


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