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Umesh Chandra Singha and ors. Vs. Madhu Sudan Khamkat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.119
AppellantUmesh Chandra Singha and ors.
RespondentMadhu Sudan Khamkat
Cases ReferredRam Kirpal v. Rup Kuari
Excerpt:
civil procedure code (act xiv of 1882), sections 13 244 and 276 - res judicata--execution proceedings--general principles of law. - .....binding on us in second appeal--that the claim in the other suit of which the decree-holder in the present suit desires to obtain the benefit, had been satisfied.'3. the learned judges then dealt with the question whether the satisfaction of the second decree was, or was not, a bona fide transaction, and they pointed out that it had not been raised in either of the lower courts. we must, therefore, assume that, as between khamkat and the judgment-debtors, it was held that the judgment-debtors had duly satisfied the decree assigned to das.4. khamkat, however, has endeavoured tore-agitate the question asking for a declaration under section 276, civil procedure code, to the effect that the satisfaction of the decree by the judgment-debtors was collusive and, therefore, void.5. both the.....
Judgment:

1. This is an appeal in a matter arising under the provisions of Section 244, Civil Procedure Code, between certain judgment-debtors and a person called Madha Sudan Khamkat.

2. The facts are not in controversy; they have been detailed in the judgments of the lower Courts. The mother of Khamkat obtained a decree against one Rash Behary who had obtained another decree against the judgment-debtors, appellants before us. The latter decree was purchased by a person called Das. Khamkat proceeded to levy execution against the judgment-debtors by virtue of attachment of the decree against them by Rash Behary. The matter came up for decision by this Court, and, on the 12th March 1906, the learned Chief Justice and Mr. Justice Geidt, in delivering judgment in an appeal by Khamkat against the present appellants, observed: 'Both the Courts below have found--a finding which is binding on us in second appeal--that the claim in the other suit of which the decree-holder in the present suit desires to obtain the benefit, had been satisfied.'

3. The learned Judges then dealt with the question whether the satisfaction of the second decree was, or was not, a bona fide transaction, and they pointed out that it had not been raised in either of the lower Courts. We must, therefore, assume that, as between Khamkat and the judgment-debtors, it was held that the judgment-debtors had duly satisfied the decree assigned to Das.

4. Khamkat, however, has endeavoured tore-agitate the question asking for a declaration under Section 276, Civil Procedure Code, to the effect that the satisfaction of the decree by the judgment-debtors was collusive and, therefore, void.

5. Both the lower Courts have held, on the contentions raised, that the application is not barred by res judicata, and that it was competent to the petitioner to make it under Section 244, Civil Procedure Code; and these are the questions upon which the learned Vakils on both sides have addressed their arguments to us.

6. After giving our best consideration to the various authorities cited, we are of opinion that the decision of the lower Courts cannot be sustained.

7. No case has been cited exactly in point, but the general principle cannot be denied that where the parties have obtained a decision in a matter arising under Section 244, Civil Procedure Code, they are bound by that decision. This principle was declared in the early case of Ram Kirpal v. Rup Kuari 6 A. 269 at p. 274; (P.C.) 11 I.A. 37 where their Lordships of the Judicial Committee said: The matter decided by Mr. Probyn was not decided in a formal suit, but in a proceeding of which the application, in which the orders reversed by the High. Court were made, was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877, but upon general principles of law. If it were not binding, there would be no end to litigation.'

8. These observations appear to us entirely applicable to the present litigation, and the mere fact that the assignee Das has been made a party to the present proceeding does not alter the fact of the decision as between Khamkat and the judgment-debtors, appellants before us.

9. We are of opinion, therefore, that the doctrine of res judicata, as interpreted by the Judicial Committee bars the present application of Khamkat; and, by a parity of reasoning, the application cannot proceed under the provisions of Section 244, Civil Procedure Code. There may be a remedy by a separate suit against Das, but we are not concerned with that aspect of the case in the present appeal.

10. We, therefore, set aside the judgment of the Court below and decree this appeal with cost--five gold mohurs.


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