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2012 DIGILAW 929 (GAU)

Bahar Miah (Md. ) v. Manu Miah (Md. )

2012-08-04

UTPALENDU BIKAS SAHA

body2012
JUDGMENT Utpalendu Bikas Saha, J. 1. Title (Partition) Suit 23 of 1999 was filed by one Md. Bajlu Mian (Plaintiff) Predecessor in interest of respondent Nos. 1 to 8 in the instant revision petition against the present petitioners as defendants along with the respondents Nos. 9 to 13. In the said suit, the Plaintiff, predecessor in interest of the respondent Nos. 1 to 8 asked for partition of the joint property and also for passing a decree allocating him 23.44% share of the joint property. The aforesaid suit was contested by the present petitioner Nos. 1 and 2 who were proforma defendant Nos. 10 and 11 in the suit and no other defendant including the petitioner Nos. 3 to 5 contested the suit. On contest the suit was decreed with a preliminary decree dated 11.07.2001. As the parties in the suit would not affect partition by themselves, in terms of the preliminary decree, the plaintiff Md. Bajlu Mian filed a petition for passing final decree and consequent thereto, the trial Court passed final decree on 27.11.2004 taking into consideration the report of the Survey Commissioner, namely, Tushar Kanti Dasgupta and in the said final decree it is mentioned that the report of the Survey Commissioner would be a part of the decree. The decree of the trial Court was never challenged by the judgment debtors-petitioners herein in any higher forum. Thus, the decree became final. For ready reference it would be proper on our part to reproduce the final decree passed by the learned trial Court, which is as follows:-- The suit coming on 23rd day of August, 2004 for final disposal before Shri B. Majumdar, Civil Judge (Sr. Division), West Tripura, Agartala in presence of Shri Debabrata Chakraborty, learned Advocate for the plaintiff and of Shri D.R. Choudhury, learned Advocate for the Defendants. This Court doth order:-- Final decree is hereby passed in terms of the report of the survey commissioner dt. 8.1.2004 and 24.7.2004 along with map and field book etc. which shall form a part of the decree. And it is decree that property specified in the schedule hereunto annexed be allotted as per terms of the preliminary decree and according to the report of the Survey Commissioner. 8.1.2004 and 24.7.2004 along with map and field book etc. which shall form a part of the decree. And it is decree that property specified in the schedule hereunto annexed be allotted as per terms of the preliminary decree and according to the report of the Survey Commissioner. Dated, the...day of November, 2004 A.D. The plaintiff-decree holder (since deceased) preferred a petition before the Executing Court for execution of the final decree and the said petition was numbered as Title Execution Case No. 16/2005 and ultimately the Court which passed the decree as executing Court issued notice to the judgment debtors including the petitioners in the instant revision petition who were defendants in the suit. Some of the judgment debtors, defendants in the suit including the present petitioners filed an objection under Section 47 of the CPC and ultimately, the executing Court rejected the objection raised by them and consequent thereto dismissed the objection under Section 47 of the CPC. 2. When the execution case was pending the present petitioners filed an application before the learned executing Court, i.e. the Civil Judge, Sr. Div. under Section 152 of the CPC for amending the final decree and the said application was registered as Misc. Case No. 38 of 2008. On hearing the learned counsel for the respective parties the learned executing Court passed an order on 22.07.2008 which is as follows:-- Only clerical or arithmetical mistakes in judgment, decrees and orders or errors arising therein from any accidental slip or omission may be corrected by the Court as per Provision of 152 of the Code and as per decisions the power to rectify decree is not a power to give second thought over the matter. Power under Section 152 is confined to something initially intended by the Court but left out or added against such intention ( AIR 2001 SC 1084 ). Orders dated 11.07.2001, 25.08.2003 and 23.08.2004 find total reflection in the final decree passed on 27th November, 2004 and there is nothing to hold that anything was left out in the said decree so as to term the same as 'omission' as claimed. It may be pointed out that three of the petitioners had filed a similar application under Section 152 of C.P.C. on 26.07.2005 and the same was rejected by this Court in Misc. 49 of 2005. Certified copy of the same has been filed by the O.Ps. It may be pointed out that three of the petitioners had filed a similar application under Section 152 of C.P.C. on 26.07.2005 and the same was rejected by this Court in Misc. 49 of 2005. Certified copy of the same has been filed by the O.Ps. Be that as it may, the application filed under Section 152 of the Code of Civil Procedure is not entertainable for reasons as mentioned hereinabove and for want of any apparent omission in the final decree. The application is accordingly rejected and the case is disposed of on contest. 3. Being aggrieved by the aforesaid order dated 22.07.2008 the present petitioners along with some other judgment debtors filed a revision petition before this Court which was registered as Civil Revision Petition No. 60 of 2008. This Court after hearing the learned counsel for the parties and taking note of the decision of the Apex Court as referred to by the learned counsel for the parties, rejected the said revision stating inter alia, that: the petitioners neither challenged the Survey Commissioner's report before the trial Court when it was taken to consideration at the time of hearing on final decree, nor challenged the final decree filing an appeal against it. The issue, what is raised now cannot be a subject matter of amendment of decree under Section 152 of C.P.C. The petition, therefore, deserves no merit for consideration and hence stands rejected. 4. Thereafter, the petitioner Nos. 1 and 2 herein, i.e. the proforma defendant Nos. 10 and 11 in the suit submitted another application under Section 152 of the CPC for amendment of the final decree dated 27.11.2004 passed in the aforesaid partition suit on the ground that the Survey Commissioner committed mistakes while calculating the quantum of land in respect of the different share holders and for such wrong calculation the decree could not be executed and as such needs to be amended. The said application under Section 152 of the CPC was registered as case No. Civil Misc. 173/2012 arising out of aforesaid partition suit being TS(P) 23/1999 and the aforesaid petition for amendment of the final decree was heard by the learned executing Court and upon hearing the respective parties in the said proceeding on 07.07.2012 the learned executing Court rejected the application for amendment under Section 152 of the Code filed for second time. 5. 173/2012 arising out of aforesaid partition suit being TS(P) 23/1999 and the aforesaid petition for amendment of the final decree was heard by the learned executing Court and upon hearing the respective parties in the said proceeding on 07.07.2012 the learned executing Court rejected the application for amendment under Section 152 of the Code filed for second time. 5. Being aggrieved by the aforesaid order dated 07.07.2012 the present petitioners, who were the defendants in the suit, preferred this revision petition. 6. Heard Mr. D.R. Choudhury, learned counsel appearing along with Mr. D. Deb, learned counsel for the petitioners as well as Mr. D. Charkaborty, learned counsel for the respondent Nos. 1 to 8, i.e. the legal heirs of original plaintiff. 7. This petition was taken up on 03.08.2012 for motion hearing and on that date the learned counsel for the respondent Nos. 1 to 8, raised the question of maintainability of the instant revision petition on the ground of constructive res judicata as in earlier revision petition the present petitioners were party and also raised similar question regarding the mistake committed by the Survey Commissioner in his report particularly non-following of the preliminary decree. Mr. Choudhury submits that the principle of constructive res judicata would not apply in the instant case as the petitioner Nos. 1 and 2 had raised a new question in their second application for amendment of the decree under Section 152 of the Code. He further submits that Section 152 of the Code has given inherent power to the executing Court to amend the decree at any stage. As the question of maintainability of the revision petition is raised, the same is taken up for hearing on maintainability, as agreed to by the learned counsel for the parties even in absence of proforma-respondents as they did not contest the suit. 8. Mr. Choudhury, while urging for setting aside the impugned order dated 07.07.2012 would contend that the findings of the learned executing Court, inter alia, that: the order dated 18.07.2008 of this Court is also relevant for determination of the petition of the petitioner. From the said order it appears that on earlier occasion similar plea was also taken by the JDs and in those occasions those petitions were disposed of against the JDs. From the said order it appears that on earlier occasion similar plea was also taken by the JDs and in those occasions those petitions were disposed of against the JDs. Keeping in mind judgment passed by his Lordship in aforesaid CRP No. 60 of 2008, I am of the view that the application filed under Section 152 of CPC on the ground stated in the petition is not entertainable for the aforesaid reasons as mentioned herein above. Accordingly, the application stands rejected were not correct as the present petitioners had never raised the question of the mistake committed by the Survey Commissioner so far as the calculation of the respective share of the parties on earlier occasion in the earlier petition under Section 152 of the CPC or in the earlier Civil Revision Petition No. 60 of 2008. Thus, the plea of constructive res judicata is not sustainable under law and the impugned order is liable to be set aside. 9. He would again contend that the legislature never intended for depriving a party in a suit to raise a new plea by way of filing a subsequent petition or suit and in the instant case the petitioners neither in their earlier revision petition nor in their petition under Section 152 of the Code raised any question regarding the calculation part of the Survey Commissioner's report. Thus, the present revision petition cannot be barred by principle of constructive res judicata. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in Ramagya Prasad Gupta & Ors. Vs. Murli Prasad & Ors. AIR 1914 SC 1320 wherein the Apex Court noted, inter alia, that: this issue was not necessarily confined to the existence or validity of the partnership but as to whether the other parties to the suit have contributed to the capital of the firm or paid Murli Prasad any amounts which they are entitled to recover from out of the compensation amount. This was not the subject-matter of Title Suit No. 68 of 1954. Even as the learned Advocate contends, there is no longer any question of partnership being dissolved once the subject-matter has disappeared by the revocation of the licence and after the entire assets of the partnership were taken over by the Government. This was not the subject-matter of Title Suit No. 68 of 1954. Even as the learned Advocate contends, there is no longer any question of partnership being dissolved once the subject-matter has disappeared by the revocation of the licence and after the entire assets of the partnership were taken over by the Government. Even if the partnership was illegal and void as contended by the respondent in the other title suit, the same question, namely, whether the plaintiff-first respondent alone would be entitled to the entire compensation, was not the subject-matter of the Title Suit No. 68 of 1954. If so, no question of res judicata would arise. The preliminary objection is accordingly overruled. 10. To support his aforesaid contention he also placed reliance on another decision of the Apex Court in Ferro Alloys Corpn. Ltd. & Anr. Vs. Union of India & Ors. AIR 1999 SC 1236 particularly paragraphs 25 and 50 of the said report which are as follows:-- 25. It is obvious that in the aforesaid proceedings no issue arose for consideration as to whether the assessment of the need of the appellant for chrome ore by the Sharma Committee as accepted by the Central Government by its order dated 17th August, 1995, was an underestimate. Consequently, whatever observations might have been made by this Court while dealing with issue No. 4, cannot be said to be an express decision On the vexed question as to whether the assessment of the need for chrome ore, so far as the appellant is concerned, as approved by the Sharma Committee and accepted by the Central Government, involved any error or not or whether it was required to be re-assessed for upward revision. It is, therefore, difficult to agree with the contention of the learned Senior counsel for the Respondents that such an issue was expressly adjudicated upon by this Court in the aforesaid decision and the findings thereon, therefore, could not be made the subject matter of fresh proceedings between the parties. Not only the contesting parties were not heard on this issue but also there was no final decision thereon inter se these parties. Not only the contesting parties were not heard on this issue but also there was no final decision thereon inter se these parties. Consequently, it is difficult to appreciate the reasoning in the impugned order of the High Court that the controversy in this connection raised by the appellant in the present writ petition was finally concluded by this Court and, hence, the writ petition raising this contention, was barred by res judicata. 50. In view of our decision on Point No. 3, it is obvious that it is not a fit case for our interference under Article 136 of the Constitution of India. No useful purpose can be served by remanding this proceeding for a fresh decision of the High Court even though the appellant succeeds in showing that the grievances made by it regarding the alleged error in assessment of its need by the Expert Committee and as confirmed by the Central Government by its Order dated 17th August, 1995 was not barred by res judicata or constructive res judicata. It is for this simple reason that the appellant by its own conduct has disentitled itself from getting any fresh decision on this aspect from any Court. In the light of our findings on Point No. 3, Point No. 5 is, therefore, answered in the negative against the appellant and in favour of the Respondents. 11. Before concluding his submission on the question of maintainability, he also referred to the provisions of Section 152 of the Code, which is as follows:-- 152. Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from an accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. 12. Referring to the aforesaid provision of the Code Mr. Choudhury contended that under Section 152 of the Code the Executing Court is always empowered to correct the clerical and arithmetical error in a decree, particularly, in a case of partition suit and learned Executive Court committed error by not exercising such power as vested on it. To substantiate his aforesaid contention he referred to the decision of this Court in Assam Tea Corporation Ltd. Vs. Narayan Singh & Anr. To substantiate his aforesaid contention he referred to the decision of this Court in Assam Tea Corporation Ltd. Vs. Narayan Singh & Anr. AIR 1981 Gau 41 wherein this Court held that; whenever a mistake is committed by the Court or its officers and the short-fall is detected, which may be likely to cause prejudice to a party, it is the imperative duty and compulsive obligation of a Court to correct the mistake forthwith. Procedural provisions should not be taken as handle to deprive justice to a litigant. Procedural law is meant to facilitate and not to obstruct the course of substantive justice. It is also noted in the said judgment that: it will be seen on a bare perusal of Section 152 of the Code that it is an enabling provision empowering Courts to correct clerical or arithmetical mistakes in judgments, decrees and orders or any error arising therein from any accidental sip or omission. The Court has unlimited power, once it finds that the mistake is clerical or arithmetical or it is accidental slip or omission. 13. Mr. D. Chakraborty, learned counsel appearing for the respondent Nos. 1 to 8, i.e. legal heirs of the original plaintiff, while countering the submission of Mr. Choudhury has referred to the averments of the petitioners in the earlier revision petition filed by them before this Court for setting aside the earlier order of the executing Court dated 22.07.2008 in Misc. Case No. 38/2008 on a petition under Section 152 of the Code, particularly, paragraph 8 of the petition, wherein the present petitioners have contended, inter alia, that after submission of the report of the Survey Commissioner, Sri Pran Gopal Saha the plaintiff-DH Respondent submitted objection stating that the Survey Commissioner allotted less portion of land to the Plaintiff DH Respondents. Accordingly, another survey commissioner namely, Sri Tushar Kanti Dasgupta was appointed by the learned Court rejecting the report of the Survey Commissioner Sri Pran Gopal Saha. 14. Accordingly, another survey commissioner namely, Sri Tushar Kanti Dasgupta was appointed by the learned Court rejecting the report of the Survey Commissioner Sri Pran Gopal Saha. 14. The 2nd Survey Commissioner Sri Tushar Kanti Dasgupta made spot verification and ascertained the shares of the parties shifting from the earlier ascertainment of the shares of the parties in the report of the earlier Survey Commissioner by allotment of the valuable portion of the land of the plaintiff DH respondent even the portions of the land under long possession of the Defendant JD Petitioner in the share of the plaintiff DH respondents which was contrary to the judgment and preliminary decree passed by the Ld. Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala. 15. He also placed reference on paragraph 11 of the earlier revision petition wherein the present petitioners have contended that the defendant-JD-Petitioner Nos. 1, 2, 4 and 7 filed a petition under Section 152 of the Code for amendment of the final decree being not prepared as per instruction of the preliminary decree but only on the report of the Survey Commissioner, namely Tushar Kanti Dasgupta, who according to the defendant-JD-Petitioners is a close relative of the learned counsel of the plaintiff-DH-respondents. He would also contend that in the earlier revision petition directly and substantially the subject matter was the report of the Survey Commissioner which is part of the decree. Thus, the petitioners are wholly barred by the principle of constructive res judicata to raise the same question, particularly, regarding the report of the Survey Commissioner by way of filing subsequent petition under Section 152 of the CPC for amendment of the final decree which was earlier rejected and consequent thereto a revision petition, being CRP 60 of 2008 wherein also the same question was raised, which was also rejected. 16. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in Sulochana Amma Vs. Narayan Nair, (1994) 2 SCC 14 wherein the Apex Court while considering Section 11 of the CPC read with Explanation VIII of the said Section discussed the object and applicability of the said section, and noted that the Explanation to a sub section is not a substantive provision by itself, rather the same is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. He finally relied upon paragraphs 5 and 9 of the said decision, which are as follows:-- 5. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars as a plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a Court competent to try such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former Suit between the same parties or their privies, been decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the Court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise, ft equally applies to quasi-judicial proceedings of the tribunals other than the civil Courts. .... 9. Shri Sukumaran father contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in tile contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The civil Court found at K acquired life estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an Injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality, would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. As the appellant is deriving title from K who was a party in the former suit is also hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. 17. He further placed reliance on a decision of the Apex Court in Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs., Vs. Musa Dadabhai Ummer & Ors., AIR 2000 SC 1238 wherein a question came up whether an issue which was directly and substantially a subject matter of the earlier proceedings and decided can be raised in a subsequent suit or proceeding and if raised whether the same would be hit by principle by res judicata. He has placed reliance mainly on paragraphs 12, 13, 14, 18 and 19 of the said report which are as follows:-- 12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only 'collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. 13. As pointed out in Halsbury's Laws of England (Vol. Judicial decisions have however held that if a matter was only 'collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. 13. As pointed out in Halsbury's Laws of England (Vol. 16, para 1538) (4th Ed), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question (R. V. Knaptoft Inhabitants (1824)2 B & C 883; Heptulla Bros V. Thakore, (1956(1) WLR 289 (297) (PC); or if any matter was incidentally cognizable (Sanders (otherwise Saunders) v. Sanders (otherwise Saunders) (1952) (2) All ER 767 at 771). 14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression 'collaterally or incidentally' in issue implies that there is another matter which is 'directly and substantially' in issue (Mulla, CPC 15th Ed., p. 104). Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts: xxxx 18. In India, Mulla has referred to similar tests (Mulla, 15th Ed. p. 104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p.104). One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p.104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Isher Singh Vs. Sarwan Singh: AIR 1965 SC 948 Mohd. S. Labbai Vs. Mohd. Hanifa: AIR 1965 SC 1559 (sic)). We are of the view that the above summary in Mulla is a correct statement of the law. 19. We have here to advert to another principle of caution referred to by Mulla (p. 105). It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision. 18. Referring to the aforesaid observation of the Apex Court Mr. Chakraborty submits that in the instant case the Explanation VIII would not apply, in place of that Explanation IV of Section 11 would apply wherein it is stated, inter alia, that: any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 19. Referring to the aforesaid Explanation of Section 11 he contended that in the instant case also both in the earlier petition under Section 152 and the earlier revision petition filed before this Court, the issue was the report of the Survey Commissioner and the said issue was decided by both the learned executing Court as well as the revisional Court against the present petitioners and against such decision admittedly the petitioner did not approach any higher forum. Thus, those decisions have become final and the same question cannot be raised subsequently by way of tiling an application of similar nature, what the petitioners did herein. He also contended that the points raised by the petitioner regarding the mistakes committed by the Survey Commissioner could have been raised by the petitioners in their earlier petition under Section 152 of the Code as well as in the earlier revision petition but they did not raise the some. Now they cannot agitate the same being hit by Section 11 read with Explanation IV of the Code. 20. He further submits that in the instant petition the petitioners nowhere stated that the execution Court passed any order which is not within his jurisdiction and unless the plea of inherent lack of jurisdiction is raised it cannot also be said that the order passed by the executing Court is bad in law. 21. He finally contended that the principle of res judicata applies between two stages in a particular suit so that the issue which has been decided at an earlier stage against a party cannot be allowed to be re-agitated by the same party of a subsequent stage in a suit or proceeding and in the instant case, admittedly, the petitioner raised the same issue which was decided in earlier revisional proceedings, i.e. the earlier stage of a particular suit and in support of his aforesaid contention he placed reliance on a decision of the Apex Court in CV Rajendran & Anr. Vs. NM Muhammed Kunhi, AIR 2003 SC 649 . He finally contended that there is no quarrel with the submission of Mr. Choudhury that the learned executing Court has the unlimited power to rectify any clerical error in the decree. But in the instant case, though the petitioners are again and again agitating for amending the decree but actually asking for correcting the Survey Commissioner's report which was not objected by them while the same was accepted and incorporated as a part of the decree. Moreso, the decree is also not challenged in any forum. Thus, it would not be proper for this Court to deprive the decree holder from the fruits of the decree on an issue which has already been decided. 22. Mr. Moreso, the decree is also not challenged in any forum. Thus, it would not be proper for this Court to deprive the decree holder from the fruits of the decree on an issue which has already been decided. 22. Mr. Chakraborty submitted that the earlier application filed by the petitioners under Section 152 of the Code was heard by the learned executing Court and finally decided by rejecting the same by an order dated 22.07.2008 against which a revision petition was filed wherein the order of the learned executing Court was affirmed and the points taken in the subsequent petition under Section 152 could have been taken in the earlier application filed under Section 152 which was rejected by the aforesaid order and affirmed by the revisional Court but the same was not taken and admittedly the second application on the some issue was filed after the final decision in the earlier application, which was affirmed in the earlier revision petition. Thus, the subsequent application under Section 152 as well as the instant revision petition is hit by the principle of constructive res judicata. The petitioner could have also amended the first application by way of inserting the plea raised in the second application under Section 152 but the petitioner did not do so, rather allowed the Court to decide the first application on its merits finally. 23. As the debate in the instant petition is relating to res judicata, particularly constructive res judicata, it would be profitable to reproduce Section 11 of the Code to understand the rival submission of the parties. Thus, the same is reproduced:-- 11. Res judicata--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 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. 24. The principle of res judicata is there only to stop a party from raising the same question again and again. 24. The principle of res judicata is there only to stop a party from raising the same question again and again. In other way, it can be said that an issue which has been decided cannot be raised by a party again and again and on a proper analysis of Section 11 of the Code the following essential requirements are to be fulfilled to apply the bar of res judicata in a suit or in a proceeding:-- (i) The matter must be directly and substantially in issue in a former suit or any proceeding and in the later suit or proceeding. (ii) Former suit or proceeding should be between the same parties or persons in the subsequent suit or proceeding. (iii) The parties should have litigated under the same title in the earlier suit or proceeding. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the subsequent suit or proceeding. (v) The Court trying the former suit or proceeding must have competence to try the particular issue in question. 25. For clarifying the principle contained in Section 11 of the Code, 8 Explanations have been provided: Explanation No. I noted about the former suit which has been decided prior to the suit in question whether or not it was instituted particularly thereto. Explanation No. II stated regarding the competence the Court, which shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation No. III states that the matter directly and substantially in issue in the former suit must have feel alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation No. IV provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation No. V Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to claim under the persons so litigating. Explanation No. V Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to claim under the persons so litigating. Explanation No. VI Where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all persons interest in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation No. VII The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as reference, respectively, to a proceeding for the execution of the decree', question arising in such proceeding and a former proceeding for the execution of that decree. Explanation No. VIII An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. 26. In Singhai Lal Chand Jain (dead) Vs. Rashtriya Swayam Sewak Sangh, Panna & Ors., AIR 1996 SC 1211 wherein the Apex Court noted inter alia, that: having been thus defended, the question arises: whether the decree operates as a res judicata. Section 11, Code envisages principle of res judicata, i.e., 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 parties under whom they or any of them, claim, litigating under the same title, in a suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court Explanation VI to Section 11 is relevant in this behalf and reads thus: "Where persons litigate bona fide in respect of a public right or a private right claimed for themselves and others, all persons interest in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 27. 27. Principle of constructive res judicata emerges from the said Explanation No. IV when the same is read with Explanation No. III, then it would explain the concept of matter directly and substantially in issue. As in the instant case, Mr. Chakraborty raised the question of constructive res judicata, it has to be seen whether the question which was raised by the petitioners in their subsequent petition under Section 152 of the Code could have been raised in their earlier petition under Section 152 of the Code and the question raised in the instant revision petition could have been raised in the earlier revision petition and if the answer is affirmative then there will be no other alternative before this Court except to hold that the instant revision petition is barred by the principle of constructive res judicata. 28. In Forward Construction Co. & Ors. Vs. Prabhat Mandal (regd.), Andheri & Ors., AIR 1986 SC 391 the Apex Court noted inter alia: An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter so claim or defence. 29. In view of the above, this Court has to examine whether the submission of Mr. Choudhury, inter alia, that the question of calculation of the respective land of the respective parties was not the question either in the earlier proceeding under Section 152 of Code or in the revision petition. Thus, the principle of constructive res judicata would not apply. 30. Another question raised by him was regarding the application under Section 152 of the Code. This Court has gone through the decision in Ramagya Prasad Gupta & Ors. (supra). In that case, there were two suits between the parties and both the suits were tried together and the issues framed therein though decided but one of the issue was not common and the subject matter of both suits were also different and both suits were disposed of by a common judgment. The appeals arising out of the earlier suit were dismissed. The appeals arising out of the earlier suit were dismissed. An appeal was filed in respect of one decree and not in respect of others and the question was as to whether the non-filing of the appeal against the decree creates estoppels against the hearing of the other appeal and ultimately the Apex Court while considering the aforesaid question noted, inter alia, that: Title Suit No. 63 of 1954 postulates the existence of a partnership in which the first respondent is a partner, and for dissolution of partnership and rendition of accounts. Whatever may have been the common issues between the two suits, one issue which is not common and makes the subject-matter of both the suits different is that whether the plaintiff in Title Suit No. 94 of 1956, that is the first respondent in these appeals, is solely entitled to compensation from the State of Bihar. This issue is not necessarily confined to the existence or validity of the partnership but as to whether the other parties to the suit have contributed to the capital of the firm or paid Murli Prasad any amounts which they are entitled to recover from out of the compensation amount. This was not the subject-matter of Title Suit No. 68 of 1954 and in that context of the factual aspect; the Apex Court decided that the principle of res judicata will not apply. This Court has no quarrel with the said proposition of law. 31. In the case in hand, fact is totally different. In both the former and the instant proceeding, the question is as to whether the learned Executing Court committed error while rejecting the prayer of the petitioners for amending the decree, as prayed for, on the ground of mistakes in the report of the Survey Commissioner. Thus, according to this Court, the case of Ramagya Prasad Gupta & Ors. (supra) would in no way help the petitioners. 32. This Court has also gone through the decision of the Apex Court in Ferro Alloys Corpn. Ltd. & Anr. (supra). It appears from the case of Ferro Alloys Corpn. Ltd. & Anr. Thus, according to this Court, the case of Ramagya Prasad Gupta & Ors. (supra) would in no way help the petitioners. 32. This Court has also gone through the decision of the Apex Court in Ferro Alloys Corpn. Ltd. & Anr. (supra). It appears from the case of Ferro Alloys Corpn. Ltd. & Anr. (supra) that before filing of the writ petition being OJC 7729/1993 challenging the order of the Central Government wherein the Central Governed reviewed its earlier order and granted approval for renewal of lease for extracting chromium confining only to half of the area than the area granted earlier and also directed that the rest of the area be deleted from the existing lease and the said area be made available to other industries by the State Government as per the Mines and Minerals (Regulation and Development) Act, 1957 read with Mineral Concession Rules, 1960. The writ petition filed by the TISCO went to the Supreme Court as SLP filed by TISCO against the judgment of the High Court and the appellant Ferro Alloys Corpn. Ltd. were also party in the said SLP along with respondent Nos. 3 to 7. In the case of Ferro Alloys Corpn. Ltd. the Apex Court after considering the main grievances of the respective contesting parties upheld the finding reached by the Sharma Committee and the consequential order of the Central Government dated 17th August, 1995 and dismissed the SLP filed by TISCO and IDCOL. Question came up in Ferro Alloys Corpn. As to whether the principle of constructive res judicata can be in invoked even within the respondents and the Apex Court held that: it is no doubt true that principle of constructive res judicata can be invoked even inter se Respondents, but is well settled that before any plea by contesting Respondents could be said to be barred by constructive res judicata in future proceedings inter se such contesting Respondents, it must be shown that such a plea was required to be raised by the contesting Respondents to meet the claim of the appellant in such proceedings. If such a plea is not required to be raised by the contesting Respondents with a view to successfully meet the case of the appellant, then such a plea inter se contesting Respondents would remain in the domain of an independent proceedings giving an entirely different cause of action inter se the contesting Respondents with which the appellants would not be concerned. Such pleas based on independent causes of action inter se Respondents cannot be said to be barred by constructive res judicata in the earlier proceedings where the lis is between the appellants on the one hand and all the contesting Respondents on the other. In other words, when the appellants are not concerned with the inter se disputes between the contesting Respondents such inter se disputes amongst Respondents would not give rise to a situation wherein it can be said that such contesting Respondents might and ought to have raised such a ground of defence or attack for decision of the Court. Thus it appears that the fact of that case is totally different from the case in hand. More so, in that case the Apex Court decided as to whether the principle of constructive res judicata can be applicable in case of inter se respondents. In the instant case, the issue involved and decided is totally different and also not within the respondents inter se. Thus, the case of Ferro Alloys Corpn. Ltd. & Anr. (supra) would in no way help the petitioners. 33. The relief sought for in an earlier suit/petition not granted but a fresh suit/petition seeking the very same relief cannot be entertained merely because in judgment of earlier suit/petition, there is no reference to that relief. Even in that suit also the rule of res judicata would apply. When in a partition suit, preliminary decree passed by a Court is not challenged by the affected party and consequent thereto a final decree is passed, to some extent different than the preliminary decree and the said final decree is also not challenged then the final decree is the decree of the suit as the preliminary decree merged with the final decree. More so, when an application under Section 47 of the Code is filed by the judgment debtor before the executing Court objecting the execution of the decree. More so, when an application under Section 47 of the Code is filed by the judgment debtor before the executing Court objecting the execution of the decree. Failing in objection if the judgment debtor come with a petition for amendment under Section 152 of the Code and the same is rejected and challenged before the revisional Court and the revisional Court also upheld the order of the execution Court then the judgment debtor cannot come up with an application under Section 152 of the Code for amending the final decree, on the ground of some omission or error in the Survey Commissioner's Report which is part of the decree, the prayer for which has also been rejected earlier as the same is barred by the principle of constructive res judicata and exactly the same has happened in the instant case. 34. There is no doubt that the learned executing Court has the unlimited power to correct the clerical error or mistake to give effect to the decree but question is as to whether the subsequent application under Section 152 can be filed by a party for second time on the same ground for amendment of decree even when on earlier occasion a similar prayer for amendment of decree was rejected by executing Court, affirmed by the revisional Court. 35. According to this Court, the executing Court very rightly rejected the second application for amendment of the decree filed by the petitioner Nos. 1 and 2 under Section 152 of the Code. At this stage, it should be noted that the petitioner No. 3 to 5 neither filed any subsequent petition under Section 152 for correcting the decree by way of amendment nor challenged the order of the revisional Court passed in CRP 60 of 2008. Thus, those petitioners cannot have any right for questioning the impugned order passed by the learned executing Court in the subsequent petition filed by the petitioner Nos. 1 and 2 under Section 152 of the Code. If a judgment debtor is allowed to file one after another application either under Section 47 or Section 152 of the Code then the decree holder would be deprived from the fruits of the decree. 36. 1 and 2 under Section 152 of the Code. If a judgment debtor is allowed to file one after another application either under Section 47 or Section 152 of the Code then the decree holder would be deprived from the fruits of the decree. 36. Considering the entire facts and circumstances and on perusal of the pleadings of the parties in the two petition under Section 152 as well as the pleadings in the earlier revision petition, this Court is of considered opinion that the subject matter in the earlier revision petition No. CRP 60/2008 is substantially and directly the subject matter of the subsequent application under Section 152 of the Code and the present revision petition as both the earlier proceedings and the subsequent proceedings are relating to the mistake in the Survey Commissioner's report. 37. Not only that, the question which is raised in the subsequent petition under Section 152 of the Code ought to have been raised in the earlier petition under Section 152 of the Code followed by the revision petition being CRP 60 of 2008. But the petitioner did not raise those questions on earlier occasion. For that itself, it can be said that the present revision petition is barred by the principle of constructive res judicata in view of Section 11 of the Code read with Explanation No. IV as the said provision is squarely applicable to the facts and circumstances of the case and the Courts below were right in rejecting the prayer for subsequent application for amendment of decree filed by the petitioner Nos. 1 and 2. There is no error or infirmity in the impugned order passed by the Courts below. For the foregoing reasons and discussions made hereinabove, the instant revision petition is rejected. No order us to costs.