1. This appeal arises under the following circumstances: One Dhanalakshmi and Company, Madurai, instituted a suit (O. S. 101 of 1959) against one S. R. Subramania Pillai for recovery of Rs. 14,800 and odd on foot of an agency agreement dated 1-9-1957. This suit, which was instituted on 1-10-1959, was decreed on 21-9-1961. Subsequently, the judgment-debtor died and his wife, Parvathi Ammal and son, S. T. Ramalinga Pillai and a few others were impleaded as his legal representatives. In E. P. 374 of 1963, the decree-holder attached the properties of the judgment-debtor on 8-9-1963. The widow and the son of the judgment-debtor, who had already been impleaded as legal representatives, filed an application in E. A. No. 209 of 1968 under Section 47, C. P.C. claiming that they had become entitled to 3/4 share in the attached property by virtue of an earlier partition and that the attachment in respect of their 3/4 share should be raised. The basis of their plea was that under a 'Vagathadi' (Partition list) of 1952 a family partition had taken place whereby 1/4 share in the properties attached was allocated to Subramania Pillai, the judgment-debtor, and the remaining 3/4 share was allotted to his wife and sons. Neither the month nor the year of the 'Vagathadi' appears to have been given by the claimants, though the year of the partition list was given as 1952. It was further alleged that in pursuance of the said partition list, a registered partition was effected on 1-3-1960, that is to say, after the date of the institution of O. S. 101 of 1959 and before the date of the decree therein. The decree-holder raised the following objections to this petition:--
(1) that the claimants had preferred two such applications previously and had allowed them to be dismissed for default and consequently they were barred by res judicata from filing E. A. No. 209 of 1968;
(2) that the registered partition deed dated 1-3-1960 was nominal and that the partition of 1952 was neither true nor valid; and
(3) that, in any event, the wife and son of the deceased judgment-debtor were piously obliged to pay the decree debt, which was tainted neither with illegality nor with immorality.
2. The learned District Munsif of Ambasamudram misunderstood the entire scope of the enquiry. Evidently, he appears to have thought that the petition filed by the legal representatives of the judgment-debtor was in the nature of a summary application under Order 21, Rule 58, C.P.C. and that the only matter he was called upon to consider was whether the petitioners were in possession of the attached properties in their own right. Upon the evidence, he recorded a finding in their favour and allowed the petition. It is a well settled proposition of law that when the legal representative of a judgment-debtor raises a question of the type that has been raised, it must be adjudicated upon under Section 47, C.P.C. which prescribes as follows:
'47 (1). 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 separate suit.'
Clause 2 of that section provides the court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. It is also clear from Section 2(2), C.P.C. that the determination of any question within S. 47, C.P.C. is a decree and, as such, appealable. The executing court erred not only in misunderstanding the scope of the enquiry but also in failing to frame the following points which arise for determination-
(1) Whether the partition of 1952 pleaded by Parvathi Ammal and S. T. Ramalingam Pillai is true and valid, and
(2) Whether, in any event, Parvathi Ammal and S. T. Ramalingam Pillai, are bound under the doctrine of pious obligation to discharge the decretal debt. Neither of these points was framed either by the executing court or by the Additional District Judge, Tirunelveli, before whom the decree-holder preferred C. N. A. 95 of 1968 against the order of the executing court. Point No. 1 raised by the first appellate court and the observations made in para 4 of its judgment show that it shared the misapprehensions of the trial court as to the scope of the enquiry. Further the first appellate court held that inasmuch as the legal representatives of the judgment-debtor had filed two earlier applications raising the same questions and had allowed the same to be dismissed for default, E. A. 209 of 1968 was barred by the principle of res judicata. Upon this view, the first appellate court allowed the appeal with costs. It is again this order that the present appeal has been filed.
3. In Shivshankar Prasad Shah v. Baikunth Nath Singh, : 3SCR908 , the Supreme Court has ruled as follows:
'Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question has not only been pleaded but it had been heard and finally decided by the court. A dismissal of a suit for default of the plaintiff would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise, there was no need for the legislature to enact Rule 9 of Order 9, C. P. Code, which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action......
Only a decision by a court could be res judicata whether it be statutory under section 11, C. P. Code or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered res judicata the same must have been heard and finally decided.' It is admitted that neither of the two previous applications made by the judgment-debtor's legal representatives was heard or finally decided by the court. It must, consequently be held that the plea of res judicata advanced by the decree-holder and erroneously accepted by the first appellate court, is unsustainable.
4. In the result, both the judgments of the executing court and the first appellate court are set aside and the matter is remanded to the executing court for fresh disposal in accordance with law and in the light of the observations made in this judgment. Costs will abode the result. Needless to add that the parties will be given an opportunity to lead evidence, oral and documentary, in respect of their respective contentions. The executing court is directed to expeditiously dispose of this matter.