Report No. 54
1D.11. Accordingly, we recommend that the following Explanation should be inserted1 below section 9:-
"Explanation 2.-For the purposes of explanation 1, it is immaterial whether fees are attached to the office or not, and whether the office is attached to a particular place or not".
1. Section 9, of Explanation, to be numbered as Explanation 1.
Section 11-whether requires amendment in consequence of recommendation for trial of all issues
1D.12. It is being recommended1 that a Court must decide all issues, even if the case can be disposed of on a preliminary point. This necessitates a change in the provisions as to appeal. Where the decision on the preliminary issue is favourable to the defendant, and the other issues are decided against the defendant, then at present, he cannot appeal. This position is now proposed to be changed.2 It would appear that an express amendment of section 11 is not necessary on this point.
1. See discussion relating to Order 15, rule 2A.
2. See amendment to proposed section 96.
1D.13. With reference to the principle of res judicata (section 11), the Commission in its earlier Report1 proposed its extension to execution. Further, it stated2-
"A suggestion has been made, that an express provision should be inserted extending the principle of res judicata not only to execution proceedings but to all independent proceedings. It is considered unnecessary to make any specific provision of this nature and that the matter should be left to be dealt with by the Court".
1. 27th Report, amendment proposed to section 47.
2. 27th Report, note on section 11.
1D.14. The Commission referred to another question in these1 words-"The question whether an express- should be made to lay down the rule applicable in cases where cross-suits have been filed between the same parties and have been disposed of by two judgments, has been examined. The point is, whether, if an appeal is filed from one judgment and is not filed from the other judgment, the matters decided in the other judgment become res judicata. It has been considered unnecessary to make a specific provision on this point, as the matter should be dealt with by the courts according to the facts of each case."2
1. 27the Report, note on section 11.
2. For a review of the case later, see Lachhmi v. Bhulh, AIR 1927 Lah 289 (FB).
1D.15. As regards the first point (applicability of section 11 to execution and independent proceedings), we are of the view that an express provision is desirable. As regards the second point, there is some uncertainty. We shall deal with it later.1
1. See discussion as to Order 41, rule 33.
1D.16. We recommend, therefore, that the principle of res judicata should be applied to the situations of proceedings in execution and independent proceedings.
Recommendation to insert new section 11A
1D.17. Accordingly, the following new section is recommended
"11A. The provisions of section 11 apply, as far as may be, to-
(a) proceeding in execution, and
(b) civil proceedings other than suits."