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Eliza Smith Vs. the Secretary of State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal341
AppellantEliza Smith
RespondentThe Secretary of State
Excerpt:
res judicata - civil procedure code (act x of 1877), section 13--application under the administrator-general's act (xxiv of 1867), section 60--act ii of 1874, section 63--'suit.' - .....it should be settled by an appellate court.7. section 13 provides 'that no court shall try any suit or issue in which the matter in issue has been heard and finally decided by a court of competent jurisdiction in a former suit between the same parties.'8. now there is no doubt here that the matter in issue, which is the claim made by mrs. smith to the fund in question, has been decided in the former application as between her and the secretary of state; but then it is said, in the first place, that this is not a 'suit' properly so called; and in the next place, that the issue in the former case was not finally decided, because the only order made upon the application was one dismissing the petition.9. the 63rd section of act ii of 1874 (which is in the same terms precisely as section.....
Judgment:

Richard Garth, C.J.

1. This was an appeal against an order of Mr. Justice Kennedy, dismissing an application made by the plaintiff under Section 63 of Act II of 1874.

2. His Lordship considered that as a previous application of precisely the same nature had been made under the repealed Administrator-General's (Act (No. XXIV of 1867, Section 60) to enforce the same claim, and which had been heard and decided against the applicant, she was barred by Section 13 of the new Civil Procedure Code (Act X of 1877) from renewing the application.

3. There is no doubt that, in the years 1871 and 1872, Mrs. Smith did apply to the Court under Act XXIV of 1867 to obtain the sum now claimed, which application was refused; and that, in the year 1873, another application for the same sum was made by her to Mr. Justice Macpherson, which was also refused.

4. A further application for a review of his order was then made to Mr. Justice Pontifex, which was unsuccessful; and another similar application was afterwards made to Mr. Justice Macpherson, which was also unsuccessful.

5. The application to Mr. Justice Kennedy was made on the 26th of November last, upon certain fresh evidence, which, it was said, supplied the defects which had previously induced the Courts to decide against the applicant; and it has now been contended before us-

1st.--The application is not a suit within the meaning of Section 13 of Act X of 1877, and consequently that the applicant is by law entitled to repeat the application as often as she thinks proper; and

2ndly.--That if it were a question for the discretion of the Court to rehear the application or not, the learned Judge ought, in the exercise of that discretion, to have reheard the case, inasmuch as the new evidence, now brought before the Court, was such as the applicant could not, by using reasonable diligence, have procured before.

6. It will not be necessary for us to enter upon this last point, because we think, upon consideration, that Mr. Justice Kennedy was quite right in deciding that the application was barred under Section 13. It is the first time we believe that the question has been raised since the passing of the new Code, and it is desirable that it should be settled by an Appellate Court.

7. Section 13 provides 'that no Court shall try any suit or issue in which the matter in issue has been heard and finally decided by a Court of competent jurisdiction in a former suit between the same parties.'

8. Now there is no doubt here that the matter in issue, which is the claim made by Mrs. Smith to the fund in question, has been decided in the former application as between her and the Secretary of State; but then it is said, in the first place, that this is not a 'suit' properly so called; and in the next place, that the issue in the former case was not finally decided, because the only order made upon the application was one dismissing the petition.

9. The 63rd section of Act II of 1874 (which is in the same terms precisely as Section 60 of the repealed Act XXIV of 1867) enacts 'that, on the application being made, the Court shall make such order for payment of such portion of the sum claimed as justice shall require, and that such order shall be binding upon all parties to the suit'.

10. It seems clear from the language here used that the proceeding for which the section provides is to be considered a summary 'suit': but the appellant contends that the order made by the Court is not to be binding upon anybody, unless it is one for payment of the whole or some portion of the money claimed; or, in other words, that the decision of the Court is to bind the Secretary of State if the applicant succeeds; but that it is not to bind the applicant if the Secretary of State succeeds.

11. We consider that this is not the true meaning of the section; and that the words 'binding upon all parties to the suit' were inserted with a different intention altogether from that which the appellant would ascribe to them. The section contemplates that the money, which is the subject of the petition, may be claimed by parties other than the applicant; and that those parties may appear and be represented at the hearing, although they may not have joined in the petition; and the words in question appear to be inserted for the purpose of making the order of the Court binding upon those other parties as well as upon the petitioner.

12. We think, therefore, first, that this proceeding must be considered as a 'suit'; and secondly, that the issue raised in it having been once decided as between the appellant and the Secretary of State, no fresh suit or application can be made which raises the same issue.

13. This rule need be productive of no injustice, because, if the proceeding is a suit, there is no reason why the order made upon it should not be reviewed under Section 623 of the Code; and we are not prepared to say that Mrs. Smith, if an application upon sufficient grounds were made in this case to the Court below, would not be entitled to a review. That, however, would be a matter entirely in the discretion of the learned Judge who hears the application, and we give no opinion upon it.

14. The appeal is dismissed with costs.


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