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1977 DIGILAW 105 (PAT)

Baya Naik v. Kali Krishna Singh Deo

1977-05-20

K.B.N.SINGH, S.ALI AHMAD

body1977
JUDGMENT K. B. N. Singh, C. J. This Letters patent appeal filed by the defendant-judgment debtor, arises out of a decision of Shambhu Prasad Singh, J., allowing Miscellaneous Second Appeal No. 275 of 1968, and granting leave to appeal under clause 10 of the Letters Patent. 2. Necessary facts for disposal of this appeal may now be briefly set out. The plaintiff-respondent instituted Title suit No. 19 of 1953 for recovery of possession of certain lands given to the father of defendant in lieu of rendering personal service. The plaintiff's case is that as the defendant failed to render the 'personal service required of him, he was dismissed form the plaintiff's service and the plaintiff was entitled to resume possession of the lands. The trial court decreed the suit, against which the defendant filed Title Appeal No. 1 of 1955 before the lower appellate court. It is not disputed that during the pendency of this appeal the estate of the plaintiff vested in the State of Bihar on the 1st January 1956, under the provisions of the Bihar Land Reforms Act, 1950. The title appeal was dismissed on the 28th March,1958 against which the defendant filed second Appeal No. 966 of 1958 in this court, which was also dismissed on the 10tb October, 1960 as the counsel of the defendant reported no instructions. Thereafter, the plaintiff executed the decree in Execution case No. 66 of 1962 in which an objection was raised by the defendant-judgment debtor that as he estate of the plaintiff decree holder had vested in the State, he had no right to execute the decree nor could he claim possession as the lands in question were not in his possession on the date of vesting. This objection of the defendant was dismissed on the 16th December, 1964 against which he filed Miscellaneous Appeal No.3 of 1965 before the lower appellate court. This miscellaneous appeal was allowed and the lower appellate court held that the plaintiff-decree-holder could not execute the decree in his favour. The plaintiff thereafter came to this court in Miscellaneous Appeal No, 299 of 1966 and this court remanded the case to the lower appellate court for a decision whether the objection of the defendant-judgment-debtor was barred 'by the principles of constructive res Judicata. The plaintiff thereafter came to this court in Miscellaneous Appeal No, 299 of 1966 and this court remanded the case to the lower appellate court for a decision whether the objection of the defendant-judgment-debtor was barred 'by the principles of constructive res Judicata. On remand, the lower appellate court held that it was open to the defendant judgment debtor to raise this plea in the executing court as the execution proceeding is a continuation of the suit. Against that decision the plaintiff-decree-holder filed Miscellaneous second Appeal no. 275 of 1968 which was allowed by Shambhu Prasad Singh, J., holding that the objection of the defendant judgment debtor was barred by the principle of constructive res judicata. 3. Mr.S.K, Sarkar, learned counsel for the appellant, has submitted that the estate of the plaintiff-respondent vested in the State of Bihar under the Bihar Land Reforms Act, in 1966, after filing of the Title Appeal by the defendant before the lower appellate Court and not at the stage of the suit, and, therefore, the plea could be raised even at the execution stage and could not be held to be barred by res Judicata. Mr. Sarkar has also urged that the appeal was decided on the 28th March, 1958, in his favour and the plea that plffs. suit was not maintainable was available to the appellant after the decision of the Supreme Court in the case of Suraj Ahir-vs- Pirthinath on the 4th May, 1962, and not before that and, therefore, there was no question of the plea being barred by constructive res judicata. Mr. Sarkar, in support of his contention that a plea not available at the stage of the suit but available at a subsequent stage will not be barred by constructive res Judicata, has relied upon certain decisions of the Allahabad, Madras and Bombay High Courts. It is not necessary to refer to those decisions, in view of a Full Bench decision of this court in the case of Baijnath Prasad Sah -Vs. Ramphal Shani and another wherein it has been held "There are two important limitations on the application of Section 11. The first is that it applies only to suits and the second is that the court trying the former suit must be competent to try the subsequent suit. Ramphal Shani and another wherein it has been held "There are two important limitations on the application of Section 11. The first is that it applies only to suits and the second is that the court trying the former suit must be competent to try the subsequent suit. It is well settled, however, that the doctrine of res Judicata is very much wider in scope than section 11. It applies to execution proceedings and also, in certain circumstances, to decisions of courts of special Jurisdicition. It may also apply in some cases, when the former court was not competent to try the subsequent cause. If a party takes an objection at a certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, .it must be deemed that the court has adjudicated - upon the other objection also and has held against it. This principle of constructive res Judicata has been extended further, if a party has knowledge of a proceeding and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the court passes an order which it could not have passed in case that objection had succeeded on the ground that it must be deemed to have been raised by the party and decided against it. In other words, when an order is passed by a competent court, which is inconsistent with the existence of fact or Jaw on which the party could have based its objection, it must be deemed that the court has decided those facts or law against it. the plea of the vesting of the estate of the plaintiff was available to the defendant at the lower appellate court stage and the second appellate stage and the defendant not having raised it cannot be allowed to raise the same in the execution proceeding vide decision in the case of Sidheshwar Mukherjee. the plea of the vesting of the estate of the plaintiff was available to the defendant at the lower appellate court stage and the second appellate stage and the defendant not having raised it cannot be allowed to raise the same in the execution proceeding vide decision in the case of Sidheshwar Mukherjee. vs. Bhubaneshwar Prasad Narain singh noticed by the learned single judge, where in it was held that a point which could have been raised before the Supreme Court but was not raised, shall be taken, on the principle of-constructive res judicata, to - have been raised and decided against the party, who could have raised that point This was also a case under the Bihar Land Reforms Act, pertaining to Khas possession within the meaning of section 6, read with section 2 (K) vis-a-vis section 4 (a) of the said Act. 4. The contention of Mr. Sarkar that the plea became available to him after the decision of the Supreme Court in Suraj Ahir's case (supra) is also not correct, inasmuch as in Svraj Ahir as case the Supreme court did not enact any Dew law, but only Interpreted what was meant by "khas possession" as contained in section 6 of the Bihar Land Reform s Act, as laid down in the case of Rajeswar Prasad Mishra -vs. The State of West Bengal" No doubt, the law declared by this court binds courts in "India but it does not enact." Mr. Sarkar has next contended that it was discretionary with the appellate court to allow the defendant to raise a new plea of loss of plaintiff's title as a result of the vesting of the estate under the Bihar Land Reforms Act, and such precarious plea, which might or might not have been allowed to ground should not be allowed to attract the bar of constructive res Judicata. There is no substance in this contention of Mr. Sarkar, in view of the decision of the Supreme Court in the case of The State of Haryana and another -vs- Chenan Mal wherein it 'has been held as follows .- "Indeed, we are bound to take Judicial notice of the law as it existed after its amendment. We can only apply the law as it exists and not the law as it once was." 5. We can only apply the law as it exists and not the law as it once was." 5. In the result, there is no merit in this appeal and it is accordingly dismissed. but without costs. S. All Ahmad, J. I agree, Appeal dismissed.