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2016 DIGILAW 133 (TRI)

Ajoy Kumar Das v. Chanchal Kumar Das

2016-06-28

S.TALAPATRA

body2016
Judgment : Heard Mr. G.K. Nama, learned counsel appearing for the appellant. 2. This is an appeal under Section 100 of CPC questioning the legality of the judgment dated 14.12.2015 delivered in Title Appeal No.06 of 2015 by the District Judge, Unakoti Judicial District on affirming the judgment dated 30.03.2015 delivered in Title Suit No.09 of 2014 passed by the Civil Judge (Senior Division), Kailashahar, Unakoti Judicial District. 3. Earlier, the suit being Title Suit No.08 of 2011 was instituted for declaration of exclusive right, title and interest over the suit land measuring 0.10 acre as described in the schedule of the plaint and for recovery of the said land evicting the defendants. The suit was decreed and thereafter the decree was put in the execution. In the execution proceeding, the appellant filed an objection under Section 47 of the CPC raising the plea that the decree cannot be executed for not impleading the proforma-defendant No.4 of the suit being Title Suit No.09 of 2014. The executing court having the competence to adjudicate the said issue, in view of Section 47 of the CPC which clearly provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not in a separate suit. It further provides that where a question arises as to whether any person is or RSA No.26 of 2016 not the representative of a party, such question shall, for the purpose of this section, be determined by the Court. 4. It is not in dispute even by the appellant that their prayer to set aside the execution proceeding on the ground of fraud for not impleading the said proforma respondent has been dismissed by an elaborate order. Thereafter, the appellant filed a fresh suit being Title Suit No.09 of 2014 on the same ground of fraud for setting aside the decree passed in Title Suit No.08 of 2011. In the process of adjudicating the suit, the trial court, the court of the Civil Judge, Senior Division, Unakoti Judicial District, Kailashahar framed several issues including the following issue: “Whether the suit is barred by law of limitation as well as under Section 11 of the CPC.” 5. In the process of adjudicating the suit, the trial court, the court of the Civil Judge, Senior Division, Unakoti Judicial District, Kailashahar framed several issues including the following issue: “Whether the suit is barred by law of limitation as well as under Section 11 of the CPC.” 5. While appreciating the said issue on the basis of the evidence, the trial court returned the following finding: “Now the question is whether the suit is barred by the principle of res-judicata u/s 11 of the Code. Learned advocate Mr. S.P. Datta Purkayastha appearing for the principal defendants strongly argued that the suit is barred by res-judicata and constructive res-judicata u/s 11 CPC as the plaintiff duly contested the suit vide No. TS 08/2011 and there is not even whisper in his written statement about the alleged fact of fraud. The suit was decreed on contest after full fledged trial. So, he cannot be allowed to take advantage of any wrong of his own acts. Subsequently the plaintiff preferred a petition u/s 47 CPC in connected Ex.01(M) of 2012 which was registered as Civil Misc.46/2012. After full fledged hearing the petition was rejected being devoid of merit vide order dt. 10.12.2012. Defendants Exhibited the certified copy of objection u/s 47 CPC filed by the present plaintiff in Ex. 01(M)/2012(Exhibit. G series). That document i.e. Exhibit. G series categorically show that plaintiff Ajoy Kr. Das raised the said fact in execution proceeding for the first time that Chandan Kr. Das died on 03.08.2001 leaving behind his only daughter Smt Susmita Das(minor) and his wife Ashita Deb(Das) pre-deceased him. Defendants also exhibited certified copy of the order dt. 10.12.2012(Exhibit. H series) passed in Civil Misc. 46/2012 by this court. That order clearly speaks that this court has already decided the issue by holding that the application of judgment debtor i.e. the present plaintiff is barred by constructive res-judicata. Accordingly the petition being found devoid of merit was dismissed by this court in the said execution proceeding. Besides, section 47 of CPC speaks that – All questions arising between the parties to the suit in which the decree was passed shall be determined by the court executing the decree and not by a separate suit. Accordingly the petition being found devoid of merit was dismissed by this court in the said execution proceeding. Besides, section 47 of CPC speaks that – All questions arising between the parties to the suit in which the decree was passed shall be determined by the court executing the decree and not by a separate suit. As the issue in question about the alleged fact constituting fraud has already been decided by this court in Ex.01(M)/2012 and as the said decision has attained finality, judicial propriety requires that it is not be allowed to be re-opened. Hence second part of issue No.1 is decided on conclusion that the suit is barred by res-judicata u/s 11 of CPC.” [Emphasis supplied] 6. The said finding along with others was challenged in the appeal filed by this appellant under Section 96 of the CPC being Title Appeal No.06 of 2014 in the court of the District Judge, Unakoti Judicial District Kailashahar. By the impugned judgment dated 14.12.2015, the said appeal was dismissed and while dealing with the question relating to the res judicata, the first appellate court has observed as under: “However, it was decided that the suit was barred by res judicata and constructive res judicata under section 11 of CPC, since during trial, the present appellant had never raised the question of fraud. Also, it appears that the present appellant in the Execution Proceeding (Execution No.01(M)/2012) by filing petition under section 47 of CPC raised the question of fraud stating, inter alia, that Smti. Susmita Das, the minor daughter of the deceased Chandan Kumar Das was not impleaded in any suit or proceeding, but the said petition was duly considered and rejected being barred under Section 11 of CPC. The present respondent No.1 and 2 exhibited the certified copy of petition under section 47 of CPC filed by the present (Ext.G series), which categorically shows that the present appellant Shri Ajay Kumar Das raised the question of said fraud in Execution Proceeding for the first time disclosing the information that Chandan Kumar Das died on 03.08.2001 leaving behind his only daughter, Smti Susmita Das (minor) and his wife, Asita Deb (Das) pre-deceased him. The present respondent No.1 and 2 also exhibited certified copy of Order dated 10.12.2012 (Ext. H series) passed in Civil Misc. The present respondent No.1 and 2 also exhibited certified copy of Order dated 10.12.2012 (Ext. H series) passed in Civil Misc. Case No. 46/2012 by the learned court below has already decided the issue by holding that the application of judgment debtor, i.e., the present appellant is barred by constructive res judicata. It appears that the present appellant did not agitate on the decided issue in any upper Forum within time and as such, the question about the alleged fact constituting fraud has already been decided by the learned court below in case No.Ext. 1(M)/2012 and as such, said decision has already attained finality and it can not be re-opened. As such, the learned court below has rightly framed issue No.(1) and also decided it accordingly.” [Emphasis supplied] 7. Mr. G.K. Nama, learned counsel appearing for the appellant has submitted that by this appeal, the appellant has proposed a solitary substantial question of law which has been formulated as under: “Whether the plea taken in objection in a Execution proceeding can be applied in a subsequent suit as Res-judicata?” 8. Mr. Nama, learned counsel appearing for the appellant has strenuously argued before this court that the principle of res judicata can only be applied when certain issue has been decided in a former suit and attempt has been made to raise the similar issue as already decided, in a subsequent suit not otherwise. To illustrate the position, Mr. Nama, learned counsel has submitted that an objection had been raised by the appellant herein, the plaintiff in the suit, in the proceeding under Section 47 of the CPC and his plea framed for non-impleadment was admittedly rejected by the court. But that is not a decision on issue as such and that can not restrict that person who raised such objection, to institute a fresh suit on the same issue. This court has appreciated as extensively as possible at this stage of that aspect of the matter and is not in agreement with Mr. G.K. Nama, learned counsel in view of the Explanation VIII appended below the Section 11 of the CPC. This court has appreciated as extensively as possible at this stage of that aspect of the matter and is not in agreement with Mr. G.K. Nama, learned counsel in view of the Explanation VIII appended below the Section 11 of the CPC. Explanation VIII provides that 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. In this regard, this court cannot be oblivious of a decision of the apex court in Escorts Farms Ltd. vs. Commissioner, Kumaon Division Nainital, U.P. and Others reported in (2004) 4 SCC 281 where it has been enunciated that the doctrine in substance means that an issue or a point, decided and attained finality, should not be allowed to be reopened and reagitated twice over. Res judicata is a plea available in the civil proceedings in accordance with section 11. It is a doctrine applied to give finality to “lis” in the original or in the appellate proceedings. The doctrine in substance governs or holds that “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment” cannot be reagitated. In the para-53 of Escorts Farms Ltd. vs. Commissioner, Kumaon Division Nainital, U.P. and Others reported in (2004) 4 SCC 281 , the apex court had to say4 stated that plea of res judicata is not available where there is no contest on an issue between the parties. But when there is a conscious adjudication of the issue that issue cannot be raised again. 9. But when there is a conscious adjudication of the issue that issue cannot be raised again. 9. In C.V. Rajendran And Another vs. N.M. Muhammed Kunhi reported in (2002) 7 SCC 447 the apex court had occasion to observe that: “The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings.” This position as laid down in Hope Plantations Ltd. vs. Taluk Land Board reported in (1999) 5 SCC 590 has been restated in the case of U.P. State Road Transport Corporation vs. State of U.P. and Another, reported in (2005) 1 SCC 444 , but the apex court on reconsideration has observed that the res judicata is not merely restricted to the gamut of the former and the subsequent suit even that principle doctrine can be applied in two stages of the same proceeding: “The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of the Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.(See Satyadhyan Ghosal v. Deorajin Debi : AIR 1960 SC 941 .” 10. There is no equivocality that the jurisdiction of adjudication has been created under Section 47 of the CPC. The Civil Court while considering execution of the decree has been given a very limited jurisdiction to adjudicate an issue not as a suit, but the outcome of such adjudication on one issue cannot be re-agitated over twice in the fresh suit and the decision on the issue would preclude the person as a party in a subsequent suit to re-agitate the same. As such, this court does not find any merit in this appeal and as consequence thereof the same is dismissed. Draw the decree accordingly. As such, this court does not find any merit in this appeal and as consequence thereof the same is dismissed. Draw the decree accordingly. There shall be no order as to costs.