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2012 DIGILAW 1002 (MAD)

Jameela Bee v. Ragupathy

2012-02-24

R.S.RAMANATHAN

body2012
Judgment :- 1. The first defendant in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam is the revision petitioner in both the revisions. 2. The first respondent filed the suit in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam for declaration and recovery of possession of the suit properties from the defendants in that suit. The suit was decreed by judgment and decree dated 14.12.1987 and the plaintiff was declared as owner of the suit property and the first defendant was directed to hand over vacant possession within a period of two months. The first appeal filed in A.S.No.196 of 1988 on the file of the District Court, Cuddalore was also dismissed and in the Second Appeal in S.A.No.1041 of 1991, this court confirmed the decree regarding declaration and further directed the first and second defendant to hand over possession of the suit property to the plaintiff. Thereafter, the plaintiff filed E.P.No.13 of 2003 in O.S.No.69 of 1986 (Sub Court, Tindivanam) before the District Munsif, Gingee on the ground that due to change of jurisdiction, both territorial and pecuniary, the decree can be executed only before the District Munsif Court, Gingee. E.P.No.13 of 2003 was dismissed by the District Munsif, Gingee holding that the execution petition can be filed by the decree holder only before the court which passed the decree viz., the Sub Court, Tindivanam and without transfer of the decree as provided under the Code, the decree cannot be executed before that court by virtue of section 37 of the Code of Civil Procedure. It was further held that E.P.No.13 of 2003 was not maintainable as the District Munsif has no jurisdiction to entertain the application. Thereafter, the plaintiff filed another Execution Petition in E.P.No.189 of 2004 before the District Munsif, Gingee and that petition was also dismissed holding that earlier application in E.P.No.13 of 2003 was dismissed on merits and therefore, without filing a revision challenging the order passed in E.P.No.13 of 2003, the second Execution Petition in E.P.No.189 of 2004 was not maintainable. Thereafter, the plaintiff/decree holder applied for transfer of the decree passed in O.S.No.69 of 1986 by filing E.A.No.115 of 2007 and after getting an order, filed E.P.No.22 of 2008 to execute the decree. Thereafter, the plaintiff/decree holder applied for transfer of the decree passed in O.S.No.69 of 1986 by filing E.A.No.115 of 2007 and after getting an order, filed E.P.No.22 of 2008 to execute the decree. That petition was opposed by the revision petitioner stating that the present Execution Petition is barred by res judicata as earlier E.P.No.13 of 2003 and E.P.No.189 of 2004 filed before the District Munsif, Gingee were dismissed on merits and without impleading the legal representatives of the second respondent, the transfer ordered by the Sub Court, Tindivanam transferring the decree passed in O.S.No.69 of 1986 is not valid. That Execution Petition was allowed and against the same, the revision petitioner filed C.R.P.No.2512 of 2009. 3. In E.P.No.22 of 2008, the decree holder filed E.A.No.386 of 2009 to measure the property to be delivered with the help of Surveyor, to direct the Junior Engineer to disconnect the E.B. Service connection and to direct the Inspector of Police, All Women Police Station to give suitable police protection while effecting delivery and that application was allowed and against that order the revision petitioner filed C.R.P.No.2590 of 2010. 4. It is submitted by the learned counsel for the revision petitioner that admittedly, the decree was passed in O.S.No.69 of 1986 on 14.12.1987 granting decree of declaration and recovery of possession and as per Article 136 of the Limitation Act, Execution Petition ought to have been filed within a period of twelve years from the date of decree. Admittedly, E.P.No.22 of 2008 was filed beyond the said period viz., on 8.8.2007 and therefore, E.P.No.22 of 2008 is barred by limitation. He further contended that having regard to the dismissal of E.P.No.13 of 2003 and E.P.No.189 of 2004, the present E.P.No.22 of 2008 is also barred by res judicata and therefore, the courts below erred in allowing the Execution Application filed by the first respondent and also the other application filed by the first respondent seeking various directions. He also relied upon the judgments in STATE OF WEST BENGAL v. HEMANT KUMAR ( AIR 1966 SC 1061 ), R.PANDHUBHAI v. BOMBAY CYCLE IMPORTING CO. (AIR 1970 MADRAS 474) and SURATSING v. GULABCHAND (AIR 1963 BOMBAY 263) in support of his contention that the present E.P.No.22 of 2008 is barred by res judicata. He also relied upon the judgments in STATE OF WEST BENGAL v. HEMANT KUMAR ( AIR 1966 SC 1061 ), R.PANDHUBHAI v. BOMBAY CYCLE IMPORTING CO. (AIR 1970 MADRAS 474) and SURATSING v. GULABCHAND (AIR 1963 BOMBAY 263) in support of his contention that the present E.P.No.22 of 2008 is barred by res judicata. He further submitted that even in the absence of raising the plea of limitation, the court ought to have considered the plea of limitation and when the Execution Petition is filed beyond the period of twelve years, it is liable to be dismissed and relied upon the judgment in M/S.CRAFT CENTRE v. KONCHERRY COIR FACTORIES, CHERTHALA (AIR 1991 KERALA 83) and AJAB ENTERPRISES v. JAYANT VEGOILES AND CHEMICALS PVT. LTD. (AIR 1991 BOMBAY 35) in support of his contention. 5. On the other hand, the learned counsel for the first respondent Mr.Muthukumar submitted that though the learned Sub Judge decreed the suit on 14.12.1987, as per the decree passed by the Sub Court in O.S.No.69 of 1986, the declaratory relief was granted and the first defendant was directed to hand over vacant possession and only in Second Appeal No.1041 of 1991, the decree was modified and the second defendant was also directed to hand over possession along with the first defendant and the second appeal was disposed of on 2.11.2001 and by reason of the modification of the decree passed in the Second Appeal, the decree passed in O.S.No.69 of 1986 merged with the decree passed in the Second Appeal and therefore, E.P.No.22 of 2008 filed on 8.8.2007 is within the period of limitation from the date of decree passed in S.A.No.1041 of 1991. In support of his contention, he relied upon the judgment in ramkrishna bajirao gotmare v. kanhaiyalal tribhuwanlal shah (AIR 1990 BOMBAY 361). In support of his contention, he relied upon the judgment in ramkrishna bajirao gotmare v. kanhaiyalal tribhuwanlal shah (AIR 1990 BOMBAY 361). He further submitted that dismissal of E.P.Nos.13 of 2003 and 189 of 2004 was not on merits and those Execution Petitions were dismissed on the ground that in the absence of transfer of the decree passed in O.S.No.69 of 1986 from the Sub Court, Tindivanam, the decree holder cannot file Execution Petition before the District Munsif, Gingee stating that after the alteration of pecuniary as well as territorial jurisdiction, the District Munsif, Gingee has got jurisdiction to entertain the Execution Petitions and those two orders were not passed on merits and therefore, the judgment in E.P.Nos.13 of 2003 and 189 of 2004 will not operate as res judicata. He further submitted that within the period of limitation, the decree holder is entitled to file any number of execution petitions and therefore, it cannot be stated that dismissal of earlier Execution Petitions will operate as res judicata. 6. According to me, the contention of the learned counsel for the revision petitioner cannot be accepted. Admittedly, in S.A.No.1041 of 1991, the decree passed in O.S.No.69 of 1986, was modified and the second defendant was also directed to hand over possession to the plaintiff and therefore, the decree passed in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam got merged with the decree passed in S.A.No.1041 of 1991 and therefore, the decree which becomes executable is the decree passed in S.A.No.1041 of 1991 and therefore, Execution Petition No.22 of 2008 filed on 8.8.2007 is within the time as the same was filed within a period of twelve years as per the provisions of Article 136 of the Limitation Act. This was also properly appreciated by the Executing Court. 7. The other contention of the revision petitioner that the orders passed in E.P.Nos.13 of 2003 and 189 of 2004 will operate as res judicata is also liable to be rejected. The scope of section 11 of the Code of Civil Procedure has been summarised in the judgment reported in MOHD. YUCUB & ANOTHER v. N.MOHANRAJ & OTHERS (2003-3-LW 552) as follows:- "The principles of res judicata as contemplated under Section 11 of CPC is based on the need for giving finality to judicial decision. The scope of section 11 of the Code of Civil Procedure has been summarised in the judgment reported in MOHD. YUCUB & ANOTHER v. N.MOHANRAJ & OTHERS (2003-3-LW 552) as follows:- "The principles of res judicata as contemplated under Section 11 of CPC is based on the need for giving finality to judicial decision. The said doctrine is that none should be vexed twice on the same subject matter and no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The best method to decide the question of res judicata is to determine the case of the parties as put forward in their respective pleadings of the previous suit, and then to find out as to what had been decided by the former judgment, which is to operate as res judicata." 8. In FIDA HUSSAIN v. MORADABAD DEVELOPMENT AUTHORITY ( AIR 2011 SC 3001 ), the Honourable Supreme Court has held as follows:- "... the principles of Res judicata would apply only when the lis was inter-parties and had attained finality of the issues involved. The said Principles will, however, have no application inter alia in a case where the judgment and/or order had been passed by a Court having no jurisdiction thereof and/or involving a pure question of law." 9. In M.NAGABHUSHANA v. STATE OF KARNATAKA ( (2011) 3 SCC 408 ), the principle of res judicata has been stated as follows:- "The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest." 10. In the judgment in NIRMAL JEET SINGH HOON v. IRTIZA HUSSAIN ( (2010) 14 SCC 564 ), it has been held that when a finding has been given by a court which has no jurisdiction to decide that finding, the said finding will not operate as res judicata in a subsequent proceeding. 11. Therefore, from the above judgments, the principle of res judicata can be applied only when a finding has been given by a court of competent jurisdiction and by virtue of the finding, the issue between the parties is finally disposed of. Admittedly, in E.P.Nos.13 of 2003 and 189 of 2004, orders were not passed on merits deciding the rights of the parties and the District Munsif, Gingee held that the Execution Petition filed by the decree holder to execute the decree passed in O.S.No.69 of 1986 before the District Munsif, Gingee is not maintainable without getting transfer order under the provisions of the Code and he cannot ignore the provisions of section 37 of the Code of Civil Procedure. Therefore, in both the Execution Petitions, no decision was rendered by the District Munsif, Gingee regarding the executability of the decree passed in O.S.No.69 of 1986 and the Execution Petitions were dismissed holding that the Execution Petitions were not maintainable in the absence of the order passed transferring the decree passed in O.S.No.69 of 1986. Hence, no issue was finally determined between the parties and therefore, the judgment in E.P.Nos.13 of 2003 and 189 of 2004 will not operate as res judicata. 12. Further, even according to the findings in E.P.Nos.13 of 2003 and 189 of 2004, the District Munsif, Gingee is not competent to entertain the Execution Petition in the absence of any transfer order obtained by the decree holder from the court which passed the decree and therefore, the learned District Munsif, Gingee, does not have jurisdiction to entertain the Execution Petition in the absence of any transfer order transferring the suit in O.S.No.69 of 1986 and therefore, the Execution Petition is not maintainable. Therefore orders were passed in E.P.Nos.13 of 2003 and 189 of 2004 by the learned District Munsif holding that he has no jurisdiction to entertain the execution petition in the absence of any transfer of decree. Therefore, any order passed by a court having no jurisdiction will not operate as res judicata in a subsequent proceedings between the same parties and this has also been upheld by the Supreme Court in the judgment referred to above. Therefore, the court below has rightly held in E.P.No.22 of 2008 filed by the first respondent that it is maintainable and the earlier orders passed in E.P.Nos.13 of 2003 and 189 of 2004 will not operate as res judicata. 13. I am incomplete agreement with the findings of the court below and admittedly, after obtaining transfer of decree in O.S.No.69 of 1986, by filing necessary application, E.P.No.22 of 2008 was filed and therefore, the District Munsif, Gingee got jurisdiction only after transfer of the decree by the Sub Court, Tindivanam and hence, the earlier orders passed by it will not operate as res judicata. Hence, I do not find any merits in the submission of the learned counsel for the revision petitioner and the revision petition in C.R.P.(NPD) No.2512 of 2009 is liable to be dismissed. 14. Civil Revision Petition No.2590 of 2010 was filed against the order passed in E.A.No.386 of 2009 and as rightly held by the court below, the relief prayed for in E.A.No.386 of 2009, is only consequential to the main relief and that was rightly allowed by the court below and hence, I do not find any reason to interfere with the order of the court below and the revision petition in C.R.P.(NPD) No.2590 of 2010 is also liable to be dismissed. In the result, both the civil revision petitions are dismissed. No costs. The connected miscellaneous petitions are also dismissed.