Ramakrishnan v. Kottayi Service Co Op Bank — 1992 DIGILAW 198 (KER)

ORDER L. Manoharan, J. 1. As common question arise for determination in both these Civil Revision Petitions, hence they are disposed of by this common order. 2. Petitioners in these Civil Revision Petitions availed agricultural loan from the respondent bank. Respondent bank in C. R. P. 64 of 1992 instituted A. R. C. No. 1951 of 1988 in which an award was passed in its favour. Consequent upon the lame respondent filed E. P. 59 of 1990 before the Munsiff's Court, Alathur. While so, the State Government by notification G.O. (MS) 68/90/ Coop. dated 21-11-1990 brought into force the Kerala Cooperative Agricultural and Rural Development Relief Scheme, 1990 under which agricultural loans granted up to 2-10-1989 were directed to be Waived by the banks and the amount reimbursed by the Government. Accordingly the revision petitioners in C. R. P. 64 of 1992 were served with an intimation by the bank to the effect that a sum of Rs. 5,000/- together with Interest of Rs. 485/- has been allotted to their loan account by the Government. It was also stated that only a total amount of Rs. 1,062.25 alone need be paid by the revision petitioners towards the decree debt. As the petitioners had by then already remitted Rs. 3,850/- in court, they filed E A. 404 of 1991 to reimburse the excess amount paid. They contended that after adjusting Rs. 1,06225 from Rs. 3,850/- deposited by them, the balance Rs. 2,787.75 was to be reimbursed to them. A consequential relief also was sought in the said E. A. to record full satisfaction of the decree after making the adjustment. Respondent did not file any objection to the E, A. Consequently the said E. A. was allowed and the decree holder was directed to return a sum of Rs. 2,787,75 to the judgment debtors - revision petitioners. Since the said amount of Rs. 2,787.75 was not paid, revision petitioners filed E. P. 134 of 1991 for realisation of the said amount. To this execution petition, respondent filed a counter statement contending that the respondent is entitled to an additional amount of Rs. 425/- towards the cost of the execution petition. Lower court accepted the plea of the respondent holding that the revision petitioners are entitled to reimbursement only Rs. 2,362/- and dismissed the E. P. with the observation that the revision petitioners are at liberty to withdraw the said amount. 425/- towards the cost of the execution petition. Lower court accepted the plea of the respondent holding that the revision petitioners are entitled to reimbursement only Rs. 2,362/- and dismissed the E. P. with the observation that the revision petitioners are at liberty to withdraw the said amount. Revision petitioners in C. R. P. 64 of 1992 challenges the correctness of the said order. 3. Against revision petitioners in C. R. P. No. 65 of 1992 also the respondent obtained an award in A C. R. No. 1953 of 1988 pursuant to which respondent filed E. P. 61 of 1990. In execution of the said award, the revision petitioners made a payment of Rs. 3,850/- pursuant to the said G. O. (MS) 68/90/Coop. dated 21-11-1990, the respondent bank served an intimation on the revision petitioners to the effect that a sum of Rs. 5,000/- together with interest of Rs. 440/- has been allotted to their loan account by the Government and that the balance amount, if any, alone need be paid by the revision petitioners. Since the revision petitioners had already remitted Rs. 3,850/-, they filed E. A. 405 of 1991 to reimburse the excess money paid. Revision petitioners contended that since no amount is now actually due towards the loan amount after adjustment of the amount allotted by the Government the amount of Rs. 3,850/- deposited by them in court has to be reimbursed. A consequential prayer was also made to the effect that full satisfaction be recorded in the execution petition filed by the respondent. Respondent did not file any counter. Therefore, the lower court allowed the petition, and directed the respondent to pay the said sum of Rs,3,850/- to the judgment debtors. Since the said amount was not paid by the respondent, revision petitioners filed E. P. 135 of 1991 to which the respondent filed a counter statement contending that they are entitled to additional amount of Rs.430/- towards the cost of execution and Rs 981.45 towards interest. By the impugned order the claim of the respondent was allowed, and the court below held that the revision petitioners are entitled to get reimbursement only Rs. 2,438.00. Petitioners in C. R. P. 65/1992 challenge the said order. 4. Learned counsel for the revision petitioners contended that the impugned order is not sustainable as the contention of the respondent is barred by res judicata. 2,438.00. Petitioners in C. R. P. 65/1992 challenge the said order. 4. Learned counsel for the revision petitioners contended that the impugned order is not sustainable as the contention of the respondent is barred by res judicata. It was contended by the learned counsel that, since the order on E. A. Nos. 404 of 1991 and 405 of 1991 referred to early have become final respondent is barred by res judicata from contending that they are entitled to any amount other than that was found due in the said orders. Learned counsel maintained that reasoning of the Lower court to the effect that the order on the said E.As. since was without hearing the decree holder could only be subject to the proper accounting of the decree debt is patently wrong as an ex parte order too could operate as res judicata. 5. On the other hand learned counsel for the respondent contended, since no Injustice has been caused by the impugned order, this court cannot Interfere under S.115 C.P.C. Learned counsel relied on the decisions in Bava v. Maulana Azad S. C. C. Library ( 1977 KLT 101 ) and Appu v. Simjo ( 1989 (2) KLT 35 ). The learned counsel also contended that even if the decision of the lower court is erroneous in law or fact, that cannot justify interference under S.115 CPC. He relied on the decision in M/s. Misrilal Parasmal v. Sadaslviah ( AIR 1965 SC 553 ) in support of the said contention. It was also his contention, since the order sought to be executed is opposed to public policy the court is competent to go behind the decree and refuse execution of the same. 6. In support of the last contention the decision in Mohan Ram v. T. L. Sundararamier (AIR 1960 Madras 377 (FB)) was relied on. It is held therein, under certain exceptional circumstances the execution court can go behind the decree and refuse to execute the decree which is both opposed to public policy and enacted law. There is no case that the order sought to be executed is against law ; and merely because the amount mentioned in the order is not correct that cannot mean the order is opposed to public policy. Therefore, the said contention cannot stand scrutiny. 7. There is no case that the order sought to be executed is against law ; and merely because the amount mentioned in the order is not correct that cannot mean the order is opposed to public policy. Therefore, the said contention cannot stand scrutiny. 7. It will be noted that there is no case that the respondent was not served with notice on E. A. 404 of 1991 and E. A. 405 of 1991. Respondent admittedly did not file any objection. The order is quoted in the revision petition itself. The above E. As. were allowed. The reliefs sought were for reimbursement and to enter full satisfaction. Since those E. As. were allowed the decrees became satisfied, and then the prayer for reimbursement of the balance also stood allowed. This order became final. By virtue of Explanation VII to S.11 of C. P. C. the Section itself is made applicable to the execution proceedings also. An ex parte order could also operate as res judicata as the said order was rendered after notice to the respondent. M/s. Misrilal Parasmal v. Sadasiviah ( AIR 1965 SC 553 ) was a case that arose under the Mysore House Rent and Accommodation Control Act, (Act 30 of 1951). In that it is observed that the High Court cannot reverse the order of the District Court merely on the ground that it was vitiated by an error of law or upon the ground that a question of fact was erroneously decided by the District Court. Now the contention by the learned counsel for the respondent is even if the impugned order is against the principle of res judicata that could amount only to an error of law. Consequently this court cannot interfere in its revisional jurisdiction. 8. The doctrine of the res judicata is aimed to attach conclusiveness to decisions. The same is based on public policy and on private justice. Parasmal's case ( AIR 1965 SC 553 ) held interference in the order of the Subordinate Court under Section. 115 CPC is possible only when there is error pertaining to jurisdiction, and where the order is vitiated only by error of law of on question of fact such interference is not possible. Then the question is whether a wrong decision on the question of res judicata is only an error of law as is contended by the learned counsel for the respondent. Then the question is whether a wrong decision on the question of res judicata is only an error of law as is contended by the learned counsel for the respondent. It is totally a wrong proposition to say that a wrong decision on the question of res judicata is merely an error of law having nothing to do with jurisdiction. Res judicata has relation to or is concerned with the jurisdiction of the court to adjudicate an issue which has been once finally adjudicated. Thus the plea of res judicata concerns jurisdiction. The observation in Pandurang Dhondi v. Maruti Hari Jadhav ( AIR 1966 SC 153 ) ".........It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S.115 of the Code............'' is referred to in the decision in Sri. M. L. Sethi v. R. P. Kapur ( AIR 1972 SC 2379 ) wherein also it is held a distinction must be drawn between the errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with questions of jurisdiction of the said court, and errors of law which have no such relation or connection. Since the question of res judicata concerns the jurisdiction of the court to adjudicate the Issue, a wrong decision on such matter will amount to illegal exercise of jurisdiction or exercise of the jurisdiction with material irregularity. The argument of the learned counsel for the respondent in this regard is totally devoid of any merit. 9. As regards the contention of the learned counsel for the respondent based on the decision in Bava's case ( 1977 KLT 101 ) and Appu's case ( 1989 (2) KLT 35 ), the said cases are distinguishable. The former arose under the Kerala Buildings (Lease and Rent Control) Act, 1965 where an unregistered firm figured as the petitioner represented by its Secretary and President. The former arose under the Kerala Buildings (Lease and Rent Control) Act, 1965 where an unregistered firm figured as the petitioner represented by its Secretary and President. As the Secretary by himself could have instituted the proceedings the contention that the petition is not maintainable was rejected holding that such technical error is not amenable to be corrected by invoking the jurisdiction under S.115 C. P. C. In the latter decision two petitions were filed, one under O.22 R.10 C. P. C. and the other to amend the cause title of the plaint. Later another petition was filed to treat the earlier two applications as for setting aside the abatement and impleading. That was allowed. The same was challenged in revision. Noting that the earlier applications were filed within lime it was held that as per the proviso (b) to S.115(1) C. P. C. the power under S.115 C.P.C. cannot be exercised unless the impugned order would cause irreparable injury to the party against whom it was made. 10. The position here is entirely different. By the impugned orders the E. Ps. filed by the revision petitioners were disposed of and therefore, it is a matter which would fall under the proviso (a) to S.115 (1) C. P.C. In the circumstance, it cannot be said that, there will be no irreparable injury to the revision petitioners. At any rate since res judicata is based on public policy, the order passed in contravention of the same cannot stand the non exercise of the jurisdiction under S.115 C.P.C. in the circumstance will cause failure of justice. Therefore, the contentions raised by the learned counsel for the respondent are not sustainable. The orders under challenge are liable to be set aside. Revision petitioners are entitled to the amounts claimed by them in the respective EPs. and the EPs. shall be restored and shall be posted for further steps. The revision petitions are allowed. In the circumstance there will be no order as to costs.