1. The appellant in this case in a former execution proceeding attached an allowance payable to the respondent. The attachment was contested but it was decided against the respondent and the decision was not appealed against. It is clear that what was sought to be attached in that case was not any particular instalments but the whole allowance as it fell due. Subsequently it has been held in a case between the respondent and another creditor to which the appellant was not a party that this allowance could not be attached in this general way, and that instalments could not be attached before they respectively fell due. The appellant again took out execution and the respondent again pleaded that this attachment could not be made. This plea was accepted by the Subordinate Judge and the decree-holder accordingly appeals.
2. The only point that really arises in the appeal is whether the liability of the allowance to attachment is or is not a res judicata between the parties. The former proceeding was an execution in the same suit and was not a former suit so that Section 11 of the Code has no application and the matter must be decided on the principles laid down in Ram Kirpal v. Rup Kuari 6 A. 269 : 11 I.A. 37. The question however, whether an erroneous decision of law can have the force of a resjudicata must necessarily be decided on the same principles, whether it arises under Section 11 of the Code or in successive execution proceedings. There is considerable divergence of judicial opinion on the point and we have been referred to numerous cases of which all the most important are cited in Aghore Nath Mukerjee v. Srimati Kamini Debi 11 C.L.J. 461 : 6 Ind. Cas. 554. The learned Judges there held that an erroneous decision on a point of pure law cannot have the force of a res judicita in a subsequent case in which the cause of action is not the same. This decision was followed in Purna Chandra Sarbajna v. Rasik Chandra 13 C.L.J. 119 : 9 Ind. Cas. 568. It appears to us that, so long as the former decision merely lays down what the law is, it cannot have the force of res judicata in a subsequent proceeding to recover different relief. But if it is a decision that is contrary to law, when that expression is used in the wide sense attributed to it, for example in Section 100 of the Civil Procedure Code, it may or may not have the force of a res judicata. For instance in the case of Ram Kirpal v. Rup Kuari 6 A. 269 : 11 I.A. 37 cited above, the two proceedings did not relate to the same mesne profits and in the first the proper construction of the decree of which execution was sought was decided, This would be a question of law under Section 100 of the Civil Procedure Code but the decision did not profess to lay down what the law on the subject was. But when a decision does lay down what the law is and is found to be, erroneous, it cannot, in our opinion, have the force of res judicata in a subsequent proceeding for different relief. A decision cannot alter the law of the land. Rani Charn Ghose v. Kumud Mohan Dutta Choudhri 1 C.W.N. 687 and Bishnu Priya Chowdhurani v. Bhaba Sundari Debya 28 C. 318.
3. We think, therefore, that although it was decided between the parties in a previous execution proceeding that the allowance could be attached, the Subordinate Judge has no more power now than he really had then to attach the allowance before it was due; and that the former decision cannot alter the law in this respect or give the Subordinate Judge a jurisdiction that he would not otherwise possess.
4. It has been argued that the judgment-debtor is precluded from attacking the attachment, because in the former proceeding, he accepted benefits under it. But we think that there is nothing in this contention. The decree-holders sought to attach the whole allowance, but the executing Court, moved apparently by compassion, permitted the attachment of three-quarters only and left the rest for the judgment-debtor to enjoy. The judgment-debtor may have received this indulgence, which, in the view taken by the executing Court, was quite unjustifiable; but it certainly cannot preclude him from contesting the whole attachment.
5. The appeal is accordingly dismissed with costs, two gold mohurs.
Appeal No. 606.
6. This appeal is analogous to Appeal No. 647 and will also be dismissed with costs, two gold mohurs.