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Jaljodhan Singh S/O Pritha Singh and anr. Vs. Kirpa Singh S/O Nagahia Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 268 of 1961
Judge
Reported inAIR1963P& H178
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47 - Order 21, Rule 11
AppellantJaljodhan Singh S/O Pritha Singh and anr.
RespondentKirpa Singh S/O Nagahia Singh and ors.
Appellant Advocate Shamair Chand,; P.C. Jain and; R.K. Aggarwal, Advs.
Respondent Advocate H.S. Gujrat, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Lachhmi v. Mt. Bhulli
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the plea of former judgment has been illustrated in the text of katyayana thus, if a person though defeated at law sues again, he should be answered 'you were defeated formerly' (see the mitakshara (vyavahara), bk. this principle of preclusion of relitigation, or the conclusiveness of judgment, has struck deep roots in anglo-american jurisprudence and is..........and on repartition different lands in lieu of the original field numbers were allotted. in their execution application, the decree-holders had specified the original field numbers in respect of which they had obtained decree for possession. the kanungo submitted a report that the original field numbers had lost their identity on account of consolidation and the possession could not, therefore, be delivered of the actual areas indicated by the field numbers. the kanungo in his report, however, suggested that the executing court might order that the decree be executed against the judgment-debtors in respect of the land allotted to them on consolidation of holdings equivalent in value to the field numbers which were the subject-matter of the decree. on 29th july, 1954, the executing court.....
Judgment:

Tek Chand, J.

1. This is a judgment-debtors' appeal under the Letters Patent from the judgment of a teamed Single Judge given in E. S. A. No. 494 of 1960. The sole ground in this appeal has rested on the applicability of the doctrine of res judicata to the facts of this case.

2. The plaintiffs, who are the respondents in this appeal, had obtained a declaratory decree impugning sale of land measuring 11 bighas 10 biswas and 5 biswansis in favour of the appellants. Later on, the plaintiffs instituted a suit for possession of this area specifying the field numbers and obtained a decree for possession on 10th April, 1954. While the suit was pending before the trial Court, proceedings for consolidation of holdings in the village of the parties were going on. When the decree was obtained by the plaintiffs for the specific field numbers, the holdings had been put in the common pool for purposes of repartition and consolidation. On the conclusion of the consolidation of holdings, the original field numbers had disappeared and on repartition different lands in lieu of the original field numbers were allotted. In their execution application, the decree-holders had specified the original field numbers in respect of which they had obtained decree for possession. The Kanungo submitted a report that the original field numbers had lost their identity on account of consolidation and the possession could not, therefore, be delivered of the actual areas Indicated by the field numbers. The Kanungo in his report, however, suggested that the executing Court might order that the decree be executed against the Judgment-debtors In respect of the land allotted to them on consolidation of holdings equivalent in value to the field numbers which were the subject-matter of the decree. On 29th July, 1954, the executing Court passed a brief order in the presence of Kirpa Singh, a decree-holder, and his counsel that possession, could not be delivered as, according to the report of the Kanungo, the particular land in respect of which decree had been passed on account of consolidation has come into hotch-pot and the land demarcated originally by the specified field numbers could not be separated. The executing Court then observed that decree-holders' counsel had referred to the advice of the Kanungo that possession of land of equal value may be delivered to the decree-holders. The executing Court, remarking that this could not be done in law 'Aisa Kanunan Nahin Ho Sakta Hai,' dismissed the execution application.

3. The decree-holders did not challenge the order in appeal but were advised to institute a regular suit for possession with respect to the land allotted to the judgment-debtors on repartition. On 29th October, 1954, a suit was filed seeking possession of land of equal value out of the area allotted on repartition on consolidation of holdings to the judgment-debtors. It is not necessary to refer to all the defences taken. The objection which prevailed with the trial Court was that, in view of the provisions of Section 47 of the Code of Civil Procedure, a suit was not competent as the matter In suit related to execution, discharge, or satisfaction of the decree dated 10th April, 1954. On 26th April, 1955, the trial Court held that though the suit was not competent, but treated the petition of plaint as an application for execution of Ihe decree under Section 47 of the Code of Civil Procedure. On this course having been adopted, the judgment-debtors raised an objection that the execution application was barred by the rule of res judicata in view of the previous decision of the executing Court dated 29th July, 1954. This objection of the Judgment-debtors was not entertained by the executing Court and the judgment-debtors' appeal was dismissed by the District Judge on 10th February, 1950. The second appeal in this Court before the teamed Single Judge met with the same fate.

4. Before the learned Single Judge, counsel for the decree-holders cited two decisions of the Lahore High Court in Karnail Singh v. Viru Mal, AIR 1943 Lah 189 and Daulat Ram v. Anant Ram, AIR 1940 Lah 67. The learned Single Judge observed,

'These two cases are parallel to the present case and I am disposed to agree with the learned judges in these cases that where the executing Court without notice to the judgment-debtor and in his absence proceeds to dispose of an execution application summarily and not deciding the matter on merits and dismisses the execution application, though in the presence of the decree-holder, the decision does not operate as res judicata in a subsequent execution application because the matter not having been heard on merits and decided.'

The learned Single Judge also thought that the decision of the Privy Council in. Shivraj Gopalji v. Ayissa Bi, AIR 1949 PC 302, did not apply to the facts of this case. The learned Judge was influenced by the fact that when the first execution application was dismissed, the judgment-debtor was not even present and there was no decision on merits and, further, that it could not be said that there was an opportunity for decision on merits. On these grounds, the learned Single Judge expres-sed the view that the Courts below had rightly held that the second execution application was not barred by the rule of res judicata and consequently dismissed the judg-ment-debtors' appeal.

5. Judgment-debtors' learned counsel, Shri Shamair Chand, has argued that the two Lahore decisions relied upon by the learned Single Judge are distinguishable and in any case they do not lay down the correct law. He also maintained, that the view of the learned Single Judge, that a decision given against the decree-holders in execution application in the absence of the judgment debtors could not be hit by the rule of res judicata, was not correct.

6. In AIR 1940 Lah 67, an objection to an attachmentwas made by a party to the suit under Order 21, Rule 58,but it was dismissed summarily without any enquiry asbeing collusive. It was contended that there could beno question of res judicata in the circumstances and,therefore, the second objection petition under Section 47was competent and should have been decided on merits.This contention prevailed with Bhide J. In that case,no notice of the objection was Issued to the oppositeside and the objection was dismissed summarily on theground that it appeared to be collusive. In these circumstances, Bhide J., thought that there was no question ofeven constructive res Judicata. The learned Judge thensaid.

'The first objection in the present case must be held to have been dismissed merely because It was incompetent under Order 21, Rule 58, C. P. C. The second objection under Section 47, C. P. C., was certainly competent and in the absence of any objection as to limitation or res Judicata I do not see why it should not have been disposed of on merits'.

The appeal was accordingly allowed. This decision, to my mind, does not render any assistance to the decree-holders because the objection was held to have been dismissed merely because it was Incompetent under Order 21, Rule 58. This feature of that case which appeared, to Bhide J., to be pivotal, is wanting in the instant case.

In the second case, which had been relied upon by the learned Single Judge, AIR 1943 Lah 189, the facts were altogether different. The execution proceedings were consigned to the record room as premature because no final decree had been passed. The decree-holder, on the same day, made an application for a final decree being passed. A fresh application for execution was also made. Later on, the application made for the passing of final decree was withdrawn as unnecessary. Proceedings then continued on the second execution application. In reply to the second execution application, it was contended that unless and until a final decree was obtained, an execution application as already held was premature. Sale J. remarked that the former order appeared to have been passed by the executing Court on its own motion without allowing the decree-holder any opportunity to show cause against the Court's erroneous view that a final decree was necessary. It was then observed that the executing Court did not apply its mind to the question and the bar of constructive res judicata would not be applicable. These are different circumstances and do not lend any help for determining the question in the case now before us. Sale J., further observed that in Ramesh-war Singh v. Hitendra Singh, AIR 1924 P. C. 202, their Lordships of the Privy Council had held that a decision in execution proceedings operated as res judicata in subsequent stages of the same proceedings but there was nothing in that authority that laid down that such a decision could operate as res judicata in subsequent proceedings, it is not possible to express agreement with these observations as they neither flow from the decision of the Privy Council referred to in that judgment nor do they seem to be in consonance with reason. In any case, this decision does not materially assist the decree-holders.

7. Before the learned Single Judge, reliance had been placed upon a decision of the Privy Council In AIR 1949 P. C. 302, to the effect that a decree-holder who fails to raise a ground in support of his claim in an execution application is barred by res judicata from renewing the ground in subsequent execution proceedings merely because he neglected at a proper stage in previous proceedings to support his claim by a fresh argument of which he subsequently wished to avail himself. The principle is unexceptionable, but cannot be applied to the facts of this case as the decree was in respect of specific field numbers for the possession of which the decree-holders were not expected then to include the area which had been given in exchange to the judgment-debtors on repartition. I regret that I cannot affirm the decision of the learned Single Judge on the grounds which had impressed him.

8. Shri H. S. Gujral, learned counsel for the respondents tried to support the decision by contending that the former decision of the executing Court to the effect, that the decree for possession in respect of specific holdings could not be executed against the other land given in exchange to the judgment-debtors under consolidation proceedings, was erroneous in law. He maintained, on the strength of Moti Sagar v. Dhanna Mal, AIR 1922 Lah 329, that an erroneous decision on a question of law cannot be allowed to operate as res Judicata so as to prevent a Court from deciding the same question later when it arises between the same parties In a subsequent suit. This, however, is not the view taken by that Court in subsequent decisions. In Barkat Ali v. Karim Bakhsh, AIR 1933 Lah 325, sitting in Division Bench, Sir Shadi LaI C. J. observed that a perusal of the language of Section 11, C. P. C., shows that there is no distinction between an issue of fact and an issue of law especially when there Is identity of the matter in issue and also the identity of tha cause of action. See also Taliamand v. Mohd. Din, AIR 1930 Lah 907 and Qurban Hussain Shah v. Fazal Shah, AIR 1937 Lah 393. For the reasons stated above, I cannot accept the argument that the rule of res judicata does not prevail where the question involved is one of law.

9. The question, however, still remains whether the rule of res judicata is attracted to the facts of this case even if the grounds on which the plea has been advanced do not carry conviction.

10. The rule of res judicata has a very ancient ancestry. It was known to ancient Hindu Law as Purva Nyaya. The plea of former judgment has been illustrated In the text of Katyayana thus, 'If a person though defeated at law sues again, he should be answered 'you were defeated formerly' '. (see the Mitakshara (Vyavahara), bk. II. ch. i., edited by J. R. Gharpure, p. 14, and the Mayuka, ch. i, s., 1 p. 11 of Mandlik's edition). Reference to the above passage was made by the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 S. C. 33 (38). Reference may also be made to Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lah 289 (F8). This principle was also Known to Roman law as 'exceptio rei judicatae'. Julian defined the principle thus, 'and generally the plea of former judgment is a bar whenever the same question of right is renewed between the same parties by whatever form of action -- Et generaliter (ut julianus definit) exceptio rel judicatae obstat, quotisns inter easdem personas esdem quaestio revocator, vel alio genere judicli.) This doctrine was adopted by the countries on the European continent which had modelled their civil law on the Roman pattern. In France, the doctrine is known as 'Chose jugee' -- thing adjudged. This principle of preclusion of relitigation, or the conclusiveness of judgment, has struck deep roots in Anglo-American jurisprudence and is equally well-known in the Commonwealth countries which have drawn upon the rules of Common law. The doctrine of res judicata is recognised as a principle of universal jurisprudence forming part of the legal systems of all civilised nations. These principles have found expression in the provisions of Section 11 of the Code of Civil Procedure, though they are not exhaustive of the law on the subject. The principle of res judicata also applies to matters on which the Section is silent. Broadly stated, the doctrine of res judicata operates when there occurs Identity of subject-matter, of the cause of action; of parties or their privies; of capacity or jurisdiction. This is only a general statement admitting of limitations and exceptions. The doctrine, though sanctified by age, is not without its odlus features. If the rule of estoppel prevents a man from speaking the truth, the rule of res Judicata prohibits a party from questioning the truth of everything contained in the judgment. In other words, if a former judgment perpetrates an error, the doctrine of res judicata perpetuates it. The principle, however, has been eulogised as salutary. Apart from eulogium and opprobrium, relitigation is precluded on principles of public policy which require that a matter once litigated ought not again be drawn in controversy between the same parties or their privies, it is based upon two maxims laying down the principle that, 'no man ought to be twice vexed, if it be proved to the Court that it be for one and the same cause -- Nemo debet bis vexari, si constat curiae quod sit pro und et eadem causa'. The other maxim is, 'it concerns the State that law suits be not protracted, or, there be an end to law suits -- Interest reipublicae ut sit finis litium. 'Public policy requires that once a matter has been ad-judicated, the judgment should be considered final and not be ripped up. The basic idea underlying the rule is that matters once disposed of ought not to be brought under discussion again. A party whose interests have once been placed in jeopardy, has a right to judicial immunity from the consequences of the same matter being raked up again regardless of the fact whether the former judgment was right and just. Emphasis is laid on rule of repose rather than on the absolute justness of the conclusion. Once a dispute has been concluded, then, that conclusion is right and just. The advantage to the society is that the doctrine of res judicata not only puts an end to strife, but also it produces certainty as to individual rights. The general welfare requires that litigation ought not to be interminable. It is said 'Ne lites sint immorta-les, dum litantes sunt mortales, (since litigants are mortals, let litigation not continue for ever).

11. In view of the risk of rigid application of the rule of res judicata defeating the ends of justice, several important exceptions have been recognised. One of the rules of guidance is that former judgment, on the basis of which the plea of res judicata is rested, is to be construed with strictness in order to ascertain compliance with the requirements of the principle. The rule, therefore, assumes that at the earlier stage, the parties had effective opportunity to litigate the same matter in a Court of competent jurisdiction on issues which were directly in point and properly before the Court. This precaution cannot be overlooked, for, a decision, which has the force of res judicata, can 'make the white black, the black white; the crooked straight, the straight crooked--res judicata facit ex alba nlgrum, ex nigro album, ex curvo rectum, ex recto curvum'. A judgment which is erroneous on facts or law, is, nevertheless, res judicata so long as it is not vacated or reversed by a superior Court. In other words, a suitor is entitled to one fair trial of his case and no one Is permitted to harass another a second time, or take the time of the Court, for agitating the some controversy. Once a final judgment is obtained, the same matter cannot be canvassed anew in another action, but it has to be a decision on merits by a competent tribunal between parties over whom it has jurisdiction.

12. The original decision in this case suffers from an error which goes to the root of the matter. The matter claimed to be res judicata was never directly and substantially in issue before the executing Court. The matter was not even alleged by the decree-holders in their pleadings and there is no question, therefore, of denial by the judgment-debtors. Moreover, what is claimed to have been adjudicated is couched in ambiguous words and it is not clear at all as to what was adjudicated by the executing Court In the former proceedings. Order 21, Rule 11 (1), contemplates an oral application of the decree-holder only in one case, that is, for the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. In all other cases, a written application is required to be made under Sub-rule (2) properly signed and verified giving in a tabular form certain particulars. Inter alia, the decree-holder has to mention in his application the mode in which the assistance of the Court is required, whether by the delivery of any property specifically decreed, vide Order 21, Rule 11 (2) (j) (i). As the decree in this case related to specific field numbers, the application for execution referred to them. There was no mention of any land outside the field numbers indicated in the decree. It was only after the report of the Kanungo had been received that the counsel for the decree-holder orally requested the executing Court that possession may be ordered as advised by the Kanungo of the land allotted to the judgment-debtors on consolidation of holdings equal in value to the specific fields mentioned in the decree. Such an oral request could not in law be entertained, in view of the language of Order 21, Rule 11. After referring to this request having been made by the decree-holder's counsel the Cowl simply said that 'Aisa Kanunan Nahin Ho Sahta Hai' this could not be done in law. These are the only operative words and they suffer from apparent ambiguity. These words can either mean that an oral request could not be made for taking out execution in respect of the property not mentioned in the decree, or, these words can also be construed to indicate that law does not allow the Court to order the possession of the land given in exchange of the areas mentioned in the decree. It has been contended for the decree-holder that in view of a written application being contemplated by Order 21, Rule 11, the executing Court declined to entertain an oral request by saying that it was forbidden fay law. If that be so, there was no final adjudication on merits. In the written application, the decree-holders never pleaded that possession should be delivered to them of a portion of the land allotted to ths judgment-debtors on repartition under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. In the absence of any plea or issue, the cryptic words of the executing Court, that this cannot be done in law, cannot be raised to the status of an adjudication on merits or one which was directly and substantially in issue within the contemplation of Section 11, read will) Explana-ion III, of the Code. It is impossible to say from 3 single obscure sentence used in a dubious sense that what was adjudicated was that the law did not permit the execution of the decree for possession of specific field numbers against corresponding land given in exchange as a result of consolidation of holdings. This certainly was a wrong view, having regard to the provisions of Section 27 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. The other view seems to be more in accord with reason, as, in thinking that the oral request of the counsel could not be acceded to in law as it was contrary to the provisions of Order 21, Rule II, the executing Court would be making a correct decision. I am, therefore, of the view that neither the matter was in issue nor was it adjudicated in the sense that the merits of the question were not even discussed. The question involved cannot be said to have been either heard or tried. Even if it might have been adjudicated, there was no plea before the executing Court as required by Order 21, Rule 11. I do not think that the matter can be deemed to have been determined in the previous proceedings. In any case, such a determination was not on any matter, directly or substantially in issue, or one upon which the parties might or ought to have litigated in those proceedings. The doctrine of res judicata is restricted to factsdirectly in issue. A fact or matter is directly in issue when one party proceeds upon that basis in its pleadings and which the other side controverts in its pleadings. This matter was never properly litigated between the parties. A judgment cannot be deemed to have the effect of res judicata forbidding its agitation in subsequent proceedings where the issue subsequently raised could not properly have been litigated in the former proceedings.

13. For these reasons, I am of the view that the rule of res judicata does not stand in the way of the ad-judication of the matter raised in latter execution appli-cation.

14. We agree only with the conclusion of the learned Single Judge and in our view this Letters Patent Appeal does not deserve to succeed. The appeal is accordingly dismissed with costs.

P.D. Sharma, J.

15. I agree.


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