1. On 19th August, 1935, the decree-holder in O.S. No. 527 of 1930 attached the six items of property with which we are now concerned and a few other items in E.P. No. 383 of 1935. When the property was posted for sale on 13th July, 1936, the mother of the judgment-debtor intervened end claimed in her application, E.A. No. 1250 of 1936 (Ex. P-3), that she had been given a maintenance charge over these six items in a suit brought by her for that purpose (O.S. No. 349 of 1932) on the file of the District Munsiff's Court of Ellore). Four days before E. A. No. 1250 of 1936 was filed, the decree-holder and another filed a suit representing the general body of creditors for a declaration that the charge decree obtained by the mother of the judgment-debtor was collusive and not binding on the creditors and that the property already purchased in execution of the decree in O.S. No. 527 of 1930, as well as the items under attachment, were not therefore liable for her maintenance. On 13th July, 1936, when E. A. No. 1250 of 1936 came on for hearing, the decree-holder informed the Court that he had filed O.S. No. 231 of 1936 on 9th July, 1936. The Court thereupon passed the order,
Notify the suit presented and the charge claimed by the petitioner.
The property was thereupon brought to sale and items 1 to 5 were purchased by the first plaintiff in the suit out of which this second appeal arises and item 6 by the second plaintiff. O.S. No. 231 of 1936 was dismissed on 15th December, 1939. The appeal of the plaintiffs was allowed, the Subordinate Judge holding that the decree obtained by the mother of the judgment-debtor was vitiated by fraud and collusion. In second appeal to this Court, however, the decree of the District Munsiff was restored as far as it related to items 1 to 6, the rights to which are now in question. When the mother of the judgment-debtor, who is the appellant in this second appeal, filed E.P. No. 146 of 1943, to enforce her maintenance decree, the application was resisted; and the purchasers of the properties filed the present suit, O.S. No. 91 of 1943, for a declaration that since the appellant had not filed a suit under Order 21, Rule 63, Civil Procedure Code, within a year of the adverse claim order, they had obtained, as auction purchasers, an absolute right to the property. They also prayed for an injunction restraining her from executing her decree in O.S. No. 349 of 1932. The appellant's defence to that suit was. that her right to execute the decree was raised in O.S. No. 231 of 1936, which had ended in her favour and that it was no longer open to the respondents to contend afresh that she was not entitled to execute her decree. The Courts below held that the respondents were not barred by res judicata from putting forward their claim again. In second appeal to this Court Patanjali Sastri and Bell, JJ., were of opinion that Section 11, Explanation IV of the Code of Civil Procedure did bar the respondents from again questioning the mother's right to execute her decree, notwithstanding the fact that she had not filed a suit to set aside the adverse claim order. As however the learned Judges were confronted with the decision in Akkammal v. Komarasami : AIR1943Mad36 a case almost identical with the present case, in which it was held that the only way of getting rid of an adverse claim order was to file a suit under Order 21, Rule 63, Civil Procedure Code, the principle of res judicata would not apply, the learned Judges referred the question ' Was Akkammal v. Komarasami : AIR1943Mad36 correctly decided ?' to a Full Bench. As neither of the learned Judges is now sitting in this-Court, the appeal as well as the question referred by the learned Judges have been posted before us for decision and disposal.
2. It has first been argued for the respondents that even apart from the mandatory provision of Order 21, Rule 63, Civil Procedure Code, the matter would not be res judicata as a result of the decision in O.S. No. 231 of 1936; because the parties were litigating under different titles in the two suits. O.S. No. 231 of 1936 was filed as a representative suit by the creditors; whereas the present suit was filed by auction-purchasers who did not claim as creditors or through a creditor but through the judgment-debtor, whose interest, they had purchased. The fact that one of them was also a decree-holder was immaterial. It was held in S. A. No. 1276 of 1941 by Abdur Rahman, J., that the suit was not maintainable as a representative suit; but he treated it as one by the two respondents with regard to their own rights. It is true that in that suit they figured as creditors and here as representatives of the judgment-debtor; but in both the suits there was a triangular fight between the decree-holder, the judgment-debtor, and the appellant. The appellant was contending on the one hand that she was entitled to this charge and was claiming that charge against the interests of both the judgment-debtor and the decree-holder. There was therefore a conflict between the judgment-debtor and the appellant in the former suit, and in the latter between the appellant and the respondents, who claimed through the judgment-debtor. In Akkammal v. Komarasami : AIR1943Mad36 , under similar circumstances, it was held the bar of res judicata would undoubtedly have applied had it not been for the mandatory requirements of Order 21, Rule 63, Civil Procedure Code. We respectfully agree.
3. The learned referring Judges were of opinion that the provisions of Section 11, Civil Procedure Code, were as mandatory as the provisions of Order 21, Rule 63, Civil Procedure Code; and it has therefore been argued before us that even though the adverse order in the claim petition became final as a result of the appellant's failure to institute a suit under Order 21, Rule 63, Civil Procedure Code, the finality of those proceedings could and should have been put forward by the respondents in their suit and that since they had not done so, the decision in O.S. No. 231 of 1936 was final and must be regarded as having, by implication, decided against the plea of the respondents based on the finality of the claim proceedings. It has however to be borne in mind in this connection that O.S. No. 231 of 1936 was filed before the order on the claim petition had been passed, and it remained pending during the whole period of one year from the date of the adverse order, i.e., 13th July, 1936. The plea that the adverse claim order had become final could not therefore have been put forward in the plaint in O.S. No. 231 of 1936 though there can be no doubt that the plaintiffs could have put it forward at a later stage. The question is whether they were bound to do so, under penalty of being barred in any subsequent suit from raising that point. Upon the expiry of the period of one year from the adverse claim order, the respondents obtained an indefeasible right to the property. They had purchased it subject to the result of any suit that the appellant might have brought within the period of one year; but subject to the result of that suit, their title to the property could not be questioned by the appellant. Upon the expiry of that term, therefore, they had acquired a right in that property in much the same way as a person would acquire a title to immoveable property if he remained in adverse possession for a period of twelve years. They had therefore obtained a fresh cause of action.
4. From Arichendrana Deo Garu v. Ramanna Chandiri (1866) 3 M.H.C.R. 207 onwards, it has been a well-recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit or afterwards can bring another suit on the fresh cause of action. In that case, the plaintiff claimed a right to resume a certain jeroiti land which had been temporarily alienated. He eventually failed on that cause of action; but during the pendency of the suit the Government had transferred to him the rights in that village. He thereupon filed a fresh suit in which he claimed that the mokhasa which was the subject of the litigation in the earlier suit had lapsed to the Government and had been transferred to him by the Government. it. was held that he was entitled to put forward that plea and that the decision in the earlier suit did not operate as res judicata.
5. The principal cases relied on by the appellant in support of her contention that the respondents were bound to put forward the finality of the claim order in the earlier suit are Vinayak v. Dattatraya I.L.R. (1902) 26 Bom. 661 and Manikbhai v. Virchand : (1907)9BOMLR1020 . The former related to a suit for redemption in which it was found by the trial Court that Rs. 8,200 were due by the plaintiffs. Upon that amount being paid, possession was given to the plaintiffs. In appeal by the defendant, it was found that the sum really due was Rs. 9,809-9-9. The difference was paid by the plaintiffs. In a fresh suit, the mortgagee claimed that since the amount due to him had not been fully paid until long after possession had been given to the mortgagors as a result of the decree of the trial Court, he was entitled to mesne profits for the period from the date on which the mortgagors had obtained possession to the date on which they had fully paid to him the amount found to be due to him by the appellate Court. It was held that he was bound to have put forward that claim in the suit for redemption and could not raise it in a separate suit. The learned Judges how over specially emphasised the peculiar nature of redemption suits. The learned Chief Justice remarked:
But the decree in a suit for redemption must be such as to enable the Court to do complete. Justice...and, 'as far as it is possible the Court endeavours to make a complete decree that shall embrace the whole subject and determine upon the rights of all the parties interested in the estate....So in this case the claim on which we are now asked to adjudicate is one that could and ought to have been advanced in the former suit. Without a determination on it (the question of mesne profits) there was not a complete adjustment of the right of the parties.
The learned Chief Justice, after referring to a remark of Blackburn, J., that the dectrine of res judicata applies to all matters which existed at the time of giving of the judgment, went on to say:
Beyond doubt must this be so in a redemption suit, which has for its purpose the complete adjustment of the rights of the parties, and the decree in which, when properly framed, provides for matters even up to the time when it is ultimately carried into effect.
The comprehensive character of suits, relating to mortgages and the obligation incumbent on litigants to see that the decree in them covers all their rights has been repeatedly recognised by the Courts....
This is the only case placed before us in which it has been suggested that where a right accrues during the pendency of a suit, it must be put forward by the party acquiring the right on pain of being, in a subsequent suit, barred from putting it forward by the principle of res judicata. In Manikbhai v. Virchand : (1907)9BOMLR1020 , the plaintiff brought a suit as the heir of her father for accounts in a partnership of which her father was a partner. It was held that the claim was barred by time. She thereupon filed another suit for accounts, in which she pleaded that upon the death of her father, her mother became a partner, and that as the heir of her mother she was entitled to bring the suit. It was held that her claim in the second suit would be barred by res judicata, only if it were shown that she was aware of her right as the heir of her mother during the earlier suit. This case does not, however, help the appellant, because both pleas were there available to the plaintiff when the first suit was filed.
6. In Fakir Chandra v. Ekkari Sarkar 42 C.W.N. 560, the plaintiff filed two suits claiming the same property; but it was held that the plaintiff was not hit by the principle of res judicata, because he was not aware when he filed his earlier suit that he had an alternative cause of action. There, as in Jatindra Math Chowdry v. Azizur Rahman Shana I.L.R. (1922) Cal. 79 and several other cases quoted to us, it was pointed out that whether a particular point of attack should be pressed in a particular suit depends on the facts of each case. In Jatindra Math Chowdry v. Azizur Rahman Shana I.L.R. (1922) Cal. 79, it was held that the new point of attack should have been put forward and was available on the date when the earlier suit was filed. In Kanhqya Lal v. Banke Behari : AIR1938All542 and Rajani Kumar Mitra v. Ajmaddin Bhuiya (1928) 48 C.L.J. 577, it was held that the finality of an order on a claim petition is a point, that should be relied on in a suit filed subsequent to the date of the order. If it is not, the right resulting from the finality is deemed to be waived and cannot be raised in a subsequent suit. In Srimut Rajah Moottoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Tever v. Katama Matchiar, Zamindar of Sivaganga (1866) II M.I.A. 50 where the plaintiff pleaded that the property she claimed, was undivided, she could however have also pleaded that even though the property had been divided, she was entitled to certain items of the suit property by virtue of a will in her favour; but to the end she disclaimed the will and said that the instrument was not testamentary. Clearly in such a case a suit would not subsequently lie on the will. The above cases do not suggest that where a right accrues after the institution of the suit, as in Arichandrana Deo Garu v. D. Ramanna Chandiri (1866) 3 M.H.C.R. 207, the plaintiff is bound to put forward that right as soon as it accrues to her. Admittedly, an amendment of the plaint would be necessitated if he did so, and the Court might or might not allow that application. Ordinarily, such an application would be rejected on the ground that it was raising a fresh cause of action which was foreign to the suit as originally instituted, though no doubt it would be within the competence of the Court to permit an amendment of the plaint and thereby extend the scope of the suit. In Muyyarikandi Kunhi Pakki v. Muthuvana Cheeru : AIR1945Mad185 ,the Madras Agriculturists Debt Relief Act (Act IV of 1938), had become law during the pendency of an appeal and clearly had retrospective effect, and it was held that the debtor was bound to put forward his rights under the Act, the reason being that the Court had to administer the law as it stood on the date of its decision; and if it decided the case wrongly in ignorance of the law prevailing at the time, the decision was none the less binding and conclusive. In such a case, a separate suit based on the debtor's right under the Madras Agriculturists Debt Relief Act would clearly not be maintainable.
7. It remains to consider briefly the decision in Akkammal v. Komarasami : AIR1943Mad36 which the learned referring Judges considered needed re-consideration. The parties to the suit were the respondent, claiming through the Official Receiver, who had had an alienation set aside on the, ground that it was a sham transaction, and the appellant, who had brought the property to sale in execution of a decree obtained against one Krishna Aiyar, who had earlier sold the property to the insolvent. In a suit filed by the sons of Krishna Aiyar for partition, it was declared that the sale to the insolvent was not binding on the sons. The appellant and the respondent were both parties to this suit; and the learned Judges held that if one had regard to the principles of Section 11 of the Civil Procedure Code alone, then undoubtedly the decision in the earlier suit could not be questioned in the second suit. They however held, following Krishna Rau v. Lakshmana Shanbhogue I.L.R.(1881)Mad. 302 Peela Yarakayya v. Kanumuri Venkata Krishnamraju (1917) 6 L.W. 281 and Kumaran Uni Achan v. Kunhi Krishnan Nair (1923) 19 L.W. 394, that the provisions of Order 21, Rule 63, Civil Procedure Code, were mandatory, and that the decision in a claim application is final, unless the party aggrieved takes the course indicated in the rule by instituting a suit to supersede it. The learned Judges did not discuss the point made by the learned referring Judges that even when a matter has been concluded, if its conclusiveness is not put forward in a suit, where the conclusiveness would be a good point of attack or defence, the party not doing so is barred by the principle of res judicata from relying on it in another independent proceeding, but there can be no doubt that the learned Judges in Akkammal v. Komarasami : AIR1943Mad36 regarded the pescific provisions of Order 21, Rule 63, Civil Procedure Code, as overriding the more general principle enunciated in section II, Civil Procedure Code. It is however unnecessary for us to go so far; for the right accrued to the respondents here after their suit had been filed and they were not bound to rely on that new right in the pending suit.
8. The learned referring Judges distinguished the cases of the first and second-respondents; but it has been argued on behalf of the appellant that no such distinction can be made. In view of our decision that the later suit by the respondents is maintainable, it is unnecessary for us to consider this point.
9. The appeal is dismissed with costs. (Advocate's fee Rs. 100).