Shivashankar Prasad Shah & Ors Vs.
Baikunth Nath Singh & Ors [1969] INSC 61 (7 March 1969)
07/03/1969 HEGDE, K.S.
HEGDE, K.S.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION: 1969 AIR 971 1969 SCR (3) 908 1969
SCC (1) 718
CITATOR INFO:
D 1971 SC1678 (17) RF 1971 SC2251 (7) RF 1975
SC2295 (10) RF 1978 SC1642 (20) RF 1988 SC1531 (64)
ACT:
Code of Civil
Procedure-Res-Judicata-Objection against execution proceeding, when barred.
Bihar Land Reforms Act, ss. 3, 4 &
6-Mortgaged Estate-Final Decree obtained-Effect of.
HEADNOTE:
After a preliminary decree was obtained by
the appellants (mortgagees of an Estate including both Bakasht lands and other
lands), the Bihar Land Reforms Act, 1950 came into force. The appellant filed
petition for passing final decree. The Estate mortgaged vested in the State as
a result of a notification issued under s. 3(1) of the Act, and later a final
decree was passed in the mortgage suit.
Thereafter the appellants applied under s. 14
of the Act and got determined the compensation to which they were entitled
under the Act. But yet they filed an execution petition to execute the mortgage
decree against the Bakasht land. The respondents resisted that execution by
filing an application under s. 47, Civil Procedure Code contending that the execution
was barred under s. 4(d) of the Act. That application was dismissed for default
of the respondents. A second application raising, the same ground was filed by
the respondents but this, too, was dismissed for their default.
A third application raising the same ground
was filed by the respondents and in this, the execution court overruled the
objection raised by the respondents on the grounds (i) that the objection was
barred by the principles of res judicata and (ii) that the bar of s. 4(d)
pleaded was not tenable.
This decision was affirmed in appeal, but
reversed in second appeal by the High Court. Dismissing the appeal this Court;
HELD : (i) The objection was not barred by
the principles of res judicata. Before a plea can be held to be barred by res
judicata that plea must have been heard and determined by the court. Only a
decision by a court could be res judicata, whether it be statutory under s. 11,
Civil Procedure Code or constructive as a matter of public policy on which the
entire doctrine rests. An execution petition having been dismissed for the
default of the decree-holder through by the time petition came to be dismissed,
the judgment debtor had resisted the execution on one or more grounds, does not
bar the further execution of the decree in pursuance of fresh execution
petitions filed in accordance with law. Even the dismissal for default of
objections raised under s. 47, Civil Procedure Code does not operate as res
judicata when the same objections are raised again in the course of the execution.
[911 B-H] Maharaja Radha Parshad Singh v. Lal Sahab Rai & Ors. L.R. 17 I.A.
150, Pulvarthi Venkata Subba Rao v. Velluri Jagannadha Rao & Ors. [1964] 2
S.C.R. 310, Lakshmibai Anant Kondkar v. Ravi Bhikaji Kondkar, XXXI B.L.R. 400,
Bahir Das Pal & Anr. v, Girish Chandra Pal, A.I.R. 1923 Cal. 287, Bhagwati
Prasad Sah v. Radha Kishun Sah & Ors. A.I.R. 1950 Pat. 354, Jethmal &
Ors. v. Mst. Sakina, A.I.R. 1961 Rai.
1959 Bishwanath Kundu v. Smt. Subala Dassi,
A.I.R. 1962 Cal. 272, referred to.
909 Ramnarain v. Basudeo, I.L.R. XXV Pat.
595, disapproved.
(ii)Proceedings under s. 4(d). of the Bihar
Land Reforms Act, 1950 included execution proceedings and the execution could
not be proceeded with. The only remedy open to the appellants was to get compensation
under Chapter IV of the Act. [913 G, H] Reading ss. 3, 4 and 6 together, it
followed that all Estates notified under s. 3 vested in the State free of all
encumbrances. The quondum proprietors and tenure holders of those Estates lost
all interests in those Estates. As proprietors they retained no interest in
respect of them whatsoever. But in respect of the lands enumerated in s. 6 the
State settled on them the rights of raiyats. Though in fact the vesting of the
Estates and the deemed settlements of raiyat rights in respect of certain
classes of lands included in the Estates took place simultaneously, in law the
two must be treated as different transactions; first there was a vesting of the
Estates in the State absolutely, free of all encumbrances. 'Men followed the
deemed settlement by the State of raiyat's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State
were only those interests not coming within s. 6. [913 C-E] Section 4(d)
provided that "no suit shall lie in any civil court for the recovery of
any money due from such proprietor (proprietor whose estate has vested in the
State) or tenure holder the payment of which is secured by a mortgage of, or is
a charge on, such estate or tenure and all suits and proceedings for the
recovery of any such money which may be pending on the date of vesting shall be
dropped". Proceedings in this section undoubtedly included execution
proceedings. [1913 F] Ramnarain v. Basudeo I.L.R. XXV Pat. 595, Raj Kishore v.
Ram Pratap, A.I.R. 1967 S.C. 801; [1967] 2 S.C.R. 56, Rana Sheo Ambar Singh v.
Allahabad Bank Ltd., Allahabad, [1962] 2 S.C.R. 441 and Krishna Prasad &
Ors. v. Gauri Kumari Devi, (1962] Supp. 3 S.C.R. 564, referred to.
Sidheshwar Prasad Singh v. Ram Saroop Singh,
1963 B.L.J.R.
802, majority view disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 368 of 1966.
Appeal by special leave from the judgment and
order dated February 3, 1964 of the Patna High Court in, Appeal from Appellate
Order No. 99 of 1963.
Sarjoo Prasad and R. C. Prasad, for the
appellants.
K. K. Sinha and S. K. Bisaria, for the
respondents.
The Judgment of the Court was delivered by
Hegde, J. This appeal against the judgment of the Patna High Court dated the
3rd February, 1964 in its Appellate Order No. 99 of 1963 was filed obtaining
special leave from this Court. It arises from a proceeding under s. 47, Civil
Procedure Code. In execution of a mortgage decree, the decree-holders sought to
proceed against 910 Bakasht lands of the judgment debtors. The judgment debtors
objected to the same on the ground that the execution-was barred under s. 4(d)
of the Bihar Land Reforms Act, 1950 (to be herein,after referred to as the
Act). But that objection was overruled by the executing court on two different
grounds namely (1) that the objection in question is barred by the principles
of res judicata and (2) the bar of s. 4(d) pleaded is not tenable. The decision
of the execution court was affirmed appeal but reversed in second appeal by the
High Court.
The two questions that arise for decision in
this appeal are (1) whether the objection as regards the executability of the
decree pleaded by the judgment debtors is barred by the principles of res
judicata and (2) whether the mortgage decree has become unexecutable in view of
the provisions of the Act.
We shall now briefly set out the material
facts of the case.
The mortgages, the appellants in this appeal
obtained a preliminary decree on June 26, 1947 on the basis of a mortgage. The
property mortgaged was an Estate within the meaning of the Act. That property
included both Bakasht lands as well as other lands. The Act came into force
after the passing of the aforementioned preliminary decree. The decree-holders
filed petition for passing a final decree on September 19, 1955. The Estate
mortgaged vested in the State of Bihar on January 1, 1956 as a result of a
notification issued under s. 3 (1) of the Act. A final decree was passed in the
mortgage suit on October 1, 1956.
Thereafter the mortgagees applied under s. 14
of the Act and got determined the compensation to which they were entitled
under the Act. It is said that they did not proceed, any further in that
proceeding but on the other hand filed on June 18, 1958 an execution petition
to execute the mortgage decree against the, Bakasht lands. The judgment debtors
resisted that execution by filing an application under S.
47, Civil Procedure Code (Misc. Case No. 94
of 1959) on the ground that the decree cannot be executed in view of the
provisions of the Act. That application was dismissed for the default of the
judgment debtors on September 12, 1959.
A second application raising the same ground
(Misc. Case No. 110 of 1959) was filed by the judgment debtors is barred on the
principles of res judicata and further on July 23, 1960 for default of the
judgment debtors. A third application raising the same ground of objection
(Misc.
Case No. 91 of 1960) was filed by the
judgment debtors on September 12, 1960. That application was dismissed on
January 4,'1962 after examining the contentions of the parties. Therein the
execution court came to the conclusion that the objection raised by the
judgment debtors is barred on the principles of res judicata and further that
the same has no merits. This decision as mentioned earlier was affirmed by the
appellate court but reversed by the High Court.
We shall first take up the contention that
the objection taken 911 by the judgment debtors' is barried by principles of
res judicata. Though at one stage, learned Counsel for the appellants-decree
holders attempted to bring the case within Explanation 5, s. 11, Civil
Procedure Code, he did not pursue that line of argument but tried to support
his contention on the broader principles of res judicata. The real question for
decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110
of 1959 for default of the judgment debtors can be said to be a final decision
of the court after hearing the parties. Before a plea can be held to be barred
by the principles of res judicata, it must be shown that the plea in question
had 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, we think, 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, Order 9, Civil Procedure Code which in specific
term say 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. The contention that the dismissal of a previous suit for
default of the plaintiffs operates as res judicata in a subsequent suit in
respect of the same claim was repelled by the Judicial Committee, of the Privy
Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai and Ors.(1).
Therein the Judicial Committee observed thus
:
"None of the questions, either of fact
or law, raised by the pleadings of the parties was heard or determined by the
Judge of the Shahabad Court in 1881; and his decree dismissing the suit does
not constitute res judicata within the meaning of the Civil Procedure Code. It
must fall within one or other of the sections of chapter VII of the Code; in
the present case it is immaterial to consider which, the severest penalty,
attached to such dismissal in any case being that the plaintiff cannot bring
another suit for the same relief." From this decision it is clear that the
Judicial Committee opined that before a plea can be held to be barred by res
judicata that plea must have been heard and determined by the court. Only a
decision by a court could be res judicata, whether it be statutory under s. 11,
Civil Procedure Code or constructive as a matter of public policy on which the
entire doctrine rests. Before an earlier decision can be considered as res
judicata the same must have been heard and finally decided-see Pulvarthi
Venkata Subba. Rao v. Velluri Jagannadha Rao, and Ors. (2).
The courts in India have generally taken the
view that an execution petition which has been dismissed for the default of the
(1) L.R. 17 I.A. 150.
(2) [1964] 2 S.C.R. 310 912 decree-holder
though by the time that petition came to be dismissed, the judgment debtor had
resisted the execution on one or more grounds, does not bar the further
execution of the decree in pursuance of fresh execution petition filed in
accordance with law--see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar(1).
Even the dismissal for default of objections raised under s. 47, Civil
Procedure Code does not operate as res judicata when the same objections are
raised again in the course of the executionsee Bahir Das Pal and Anr. v. Girish
Chandra Pal (1) Bhagawati Prasad Sah v. Radha Kishun Sah and OrS. (3); Jethmal
and Ors. v. Mst. Sakina (4) ; Bishwanath Kundu v. Sm. Subala Dassi (5). We do
not think that the decision in Ramnarain v. Basudeo(6) on which the learned
Counsel for the appellant placed great deal of reliance is correctly decided.
Hence we agree with the High Court that the plea of res judicata advanced by
the appellant is unsustainable.
The next question is whether the execution is
barred under the provisions, of the Act. The contention of the judgment debtors
is that it is 'so barred whereas according to the appellants as the Bakasht
lands which form part of the mortgaged property had, not vested in the State,
the execution can proceed against those lands. Therefore we have to see whether
the entire mortgaged property had vested in the State in pursuance of the
notification under s. 3 or only the mortgaged property minus the Bakasht lands.
There is no dispute that the property
mortgaged was an Estate within the meaning of s. 2(1) and the notification
issued under s. 3 covered the entirety of the Estate. But what was urged on
behalf of the appellants is that what had vested in the State was the
non-bakasht lands as well as the proprietary interest in the Bakasht lands and
hence the Bakasht lands do not have the protection of s. 4(d);
Consequently it is not necessary for them to
exclusively proceed under s. 14.
The consequences of the vesting of an Estate
is set out in s. 4. Section 4(a) provides that once an Estate vests in the
State the various rights in respect of that Estate enumerated therein shall
also vest in the State, absolutely free from all encumbrances. Among the rights
enumerated therein undoubtedly includes the right of possession. In view of s.
4(a) there is hardly any doubt that the proprietor loses all his rights in the
estate in question.
After setting out the various interests lost
by the proprietor the section proceeds to say "such proprietoror tenure
holder shall (1) XXXI, B.L.R. 400. (2) A.I.R. 1923 CaI. 287.
(3) A I.R. 1950 Pat. 354. (4) A. I. 1961 Raj.
59.
(5) A.I.R. 1962 Cal. 272. (6) I.L.R. XXV pat.
595.
913 cease to have any interests in such
estate or tenure, other than the interests expressly saved by or under the
provisions of this Act". In order to find out the implication of the
clause extracted above we have to go to s. 6 which provides that on and from
the date of vesting all lands used for agriculture or horticultural purposes
which were in khas possession of an intermediary on the-date a vesting
(including certain classes of land specified in that section) shall subject to
the provisions of ss. 7A and B be deemed to be settled by the State with such
intermediary and he shall be entitled to retain possession thereof and hold
them as a raiyat under the State having occupancy rights in respect of such
lands, subject to the payment of such fair and equitable rent as may be
determined by the Collector in the prescribed manner.
Reading ss. 3, 4 and 6 together, it follows
that all Estates notified under s. 3 vest in the State free of all
encumbrances. The quondum proprietors and tenure-holders of those Estates lose
all interests in those Estates. As proprietors they retain no interest in
respect of them whatsoever. But in respect of the lands enumerated in s. 6 the
State settled on them the rights of raiyats. Though in act the vesting of the
Estates and the deemed settlement of raiyats rights in respect of certain
classes of lands included in the Estates took place simultaneously, in law the
two must be treated as different transactions; first there was a vesting of the
Estates in the State absolutely, and free of all encumbrances. Then followed
the deemed settlement by the State of raiyat's rights on the quondum
proprietors. Therefore in law it would not be correct to say that what vested
in the State are only those interests not coming within s. 6.
Section 4(d) provides that "no suit
shall lie in any Civil Court 'for the recovery of any money due from such
proprietor (proprietor whose estate has vested in the State) or tenure holder
the payment of which is secured by a mortgage of, or is a charge on, such
estate or tenure and all suits and proceedings for the recovery of any such
money which may be pending on the date of vesting shall be dropped".
Proceedings in this. section undoubtedly include execution proceedings. This is
not a case where only a part of the mortgaged property has vested in the such
the rule laid down by this Court in Raj Kishore Pratap(1) is not attracted. As
mentioned earlier the State and as v. Ram entire Estate mortgaged had vested
though some interest in respect of a portion of the mortgaged property had been
settled by the State on the mortgagors.
Under the circumstances the only remedy open
to the decree holders is that provided in Chap. IV of the Act i.e. a claim
under (1) [1967] 2 S.C.R. 56; A.I.R. 1967 S.C. 801.
914 s. 14 before the Claims Officer for
"determining the amount of debt legally and justly payable to each
creditor in respect of his claim'. The procedure to be followed in such a
proceeding is prescribed in ss. 15 to 18. 'Provisions relating to the
assessment and payment of compensation payable to the quondum proprietors and
tenure-holders are found in Chap. V of the Act (ss. 19 to 31.) Section 24(5)
provides that "in the case where the interest of a proprietor or tenure-holder
is subject to a mortgage or charge, the compensation shall be first payable to
the creditor holding such mortgage or charge and the balance, if any, shall be
payable to the proprietor or tenure-holder concerned:" That subsection
further prescribes the maximum amount that can be paid to such a creditor.
In view of what has been stated above it
follows that under the circumstances of this case it is not open to the
appellants to proceed with the execution. Their only remedy is to get
compensation under the Act.
Our conclusion receives strong support from
some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allhabad Bank
Ltd., Allahabad(1), a question identical to the one before us, but arising
under the U.P. Zamindari Abolition and Land Reforms Act, came up for
consideration by this Court. One of the questions that arose for decision in
that case was whether the Bhumidari right settled by the State on a previous
proprietor whose estate had vested in the State was liable to be proceeded
against in execution of a mortgage decree against the Estate that had vested in
the State. This Court held that it was not liable to be proceeded against.
Therein it was ruled that the intention of the U.P. Zamindari. Abolition and
Land Reforms Act was to vest the proprietory rights in the Sir and Khudkasht
land and grove land in the State and resettle on intermediary not as
compensation but by virtue of his cultivatory possession of lands comprised
therein and on a new tenure and confer upon the intermediary a new and special
right of Bhumidari, which he never had before by s. 18 of the Act. The
provisions in that Act relating to vesting and settlement of Bhumidari rights
are in all essential particulars similar to those in the Act relating to vesting
and settlement of Bakasht lands. This Court further ruled in that case that the
mortgagee could only enforce his rights against the mortgagor in the manner as
provided in s. 6 (h) of the U.P., Act read with s. 73 of the Transfer of
Property Act and follow the compensation money under the Act.
In Krishna Prasad and Ors. v. Gauri Kumari
Devi( 2) the question that arose for decision by the Court was whether, a
mortgage decree-holder could proceed against the properties of the mortga(1)
[1962] 2, S.C.R. 441.
(2) [1962] Supp. 3 S.C.R. 564.
915 gor other than those mortgaged in
enforcement of the personal covenant when the property mortgaged had vested in
the State under the provisions of the Act. That question was answered in the
negative. In the course of the judgment Gajendragadkar, J. (as he then was) who
spoke for the Court observed that there is no doubt "that the scheme of
the Act postulates that where the provisions of the Act apply, claims, of the
creditors have to be submitted before the Claim Officer, the claimants have to
follow the procedure prescribed by the Act and cannot avail of any remedy
outside the Act by instituting suit or any other proceeding in the court of
ordinary civil jurisdiction." Proceeding further he observed "It is in
the light of this scheme of the Act that we must revert to section 4(b) and
determine what its true scope and effect are.
Mr. Jha contends that in construing the words
of Section 4 (d) it would be necessary to bear in mind the object of the Act
which was merely to provide for the transference to the State of the interests
of the proprietors and tenure-holders in land and of the mortgagees and lessees
of such interests. It was not the object of the Act, says Mr. Jha, to
extinguish, debts due by the proprietors or tenure-holders and so, it would be
reasonable to confine the operation of s. 4 (d) only to the claims made against
the estates which have vested in the State and no others. In our opinion, this
argument proceeds on an imperfect view of the aim and object of the Act. It is
true that one of the objects of the Act was to provide for the transference to
the State of the estates as specified. But as we have already seen, the
provisions contained in section 16 in regard to the scaling down of the debts
due by the proprietors and tenure holders clearly indicate that another object
which the Act wanted to achieve was to give some redress to the debtors whose
estates have been taken away from them by the notifications issued under
section 3. Therefore, in construing s. 4(d), it would not be right to assume
that the interests of the debtors affected by the provisions of the Act do not
fall within the protection of the Act" and again at page 578 "Having
regard to the said scheme, it is difficult to confine the application of s. 4(d)
only to execution proceedings in which the decree-holder seeks to proceed
against the estate of the debtor. In fact, an execution proceeding to recover
the decretal amount from the estate which has already vested in the State,
would be incompetent because the said estate no longer belong to the judgment debtor."
Sup CI-69-9 916 Summarising the effect of the aforementioned decisions this is
what this Court observed in Raj Kishore's case(1)-a case arising under the Act:
From the principles laid down by this Court
in the above two decisions, follows that where the whole of the property
mortgaged is an estate, there can be no doubt that the procedure prescribed by
Chapter IV has to be followed, in order that the amount due to the creditor
should be determined by the claims officer and the decision of the claims
officer or the Board has been made final by the Act." For the reasons
mentioned earlier we are of the opinion that the decision of the majority of
the judges in the Full Bench decision in Sidheshwar Prasad Singh v. Ram Saroop
Singh(2) is not correct. The true effect of the decisions of this Court in Rana
Sheo Ambar Singh's case(3) and Krishna Prasad's case(4) is as explained by
Kamla Sahai, J. in that case.
In the result this appeal fails and it is
dismissed with costs.
Y.P. Appeal dismissed.
(1) [1967]2 S.C.R. 56 A.I.R. 1967 S.C. 801.
(2) [1963] B.L.J.R. 802.
(3) [1962] 2 S.C.R. 441.
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