Ajayendu Paul vs K.C. Paul and Company (P.) Ltd.

P.N. Mookerjee, J.—This Second Misc. Appeal is at the instance of the decree-holders who obtained a decree for ejectment as far back as the year 1953. They have been singularly unfortunate in failing to get the decree executed and recover possession from the judgment-debtor due to continuous resistance and intervening proceedings which have so long frustrated all their efforts in the matter.

The decree in question was passed in a suit brought for eviction of the Defendant tenant, a private limited company which is the Respondent before us, from the disputed premises in or about the year 1951. At that time, the West Bengal Premises Tenancy (Temporary Provisions) Act, 1950, was in force and there is no doubt and no dispute either, that the said Statute governed the above action for ejectment.

The suit, it appears, was contested by the Defendant tenant by filing a written statement. But, eventually it was decreed on compromise on March 27, 1953. Thereafter, the decree was put into execution on March 11, 1955, in Title Execution Case No. 83 of 1955. To that execution, an objection was filed by the above judgment-debtor u/s 47 of the CPC on the ground that, by payment and acceptance of rent after the above decree, a new tenancy had been created or, in other words, a plea of adjustment was raised. This objection was upheld by the learned Munsif on February 7, 1956, but, on appeal, in Misc. Appeal No. 257 of 1956, by the decree-holders landlords, the said objection was overruled, the appeal being allowed on August 14, 1956.

Thereafter, the matter was taken up to this Court by the judgment-debtor in S.M.A. No, 104 of 1956, but, eventually the said Misc. Appeal was dismissed by this Court on December 11, 1957. This was the first chapter of resistance by the judgment-debtor to the decree-holders'' attempt to obtain possession under the above compromise decree. This was followed by a title suit (Title Suit No. 174 of 1958/387 of 1961), which was instituted by the judgment-debtor on March 12, 1958, for a declaration that it was a thika tenant and that, accordingly, the above compromise decree was without jurisdiction. This title suit, however, was dismissed by the learned trial Judge on June 28, 1962, rejecting the judgment-debtor''s plea that it was a thika tenant on various grounds and, on appeal (Title Appeal No. 950 of 1962), the said decision was affirmed by the lower Appellate Court on July 26, 1963. From this appellate decree, a second appeal was filed in this Court by the aggrieved judgment-debtor (S.A.T. No. 3050 of 1963), but the same was summarily dismissed by this Court under Order 41, Rule 11 of the Code of Civil Procedure.

Thereafter, when the decree-holders sought to proceed with the pending execution case, the judgment-debtor filed a second objection u/s 47 of the Code of Civil Procedure, giving rise to the present proceedings, in Misc. Case No. 276 of 1963, objecting to the execution on the ground that the compromise decree in question was without jurisdiction, as it was passed in contravention of the special Statute, the West Bengal Premises Tenancy (Temporary Provisions) Act, 1950, and thus made without jurisdiction. This misc. case was eventually dismissed by the First Court on February 29, 1964, overruling the judgment-debtor''s objection on the point on the ground, inter alia, of constructive res judicata.

But, on appeal (Misc. Appeal No. 200 of 1964), the said decision was reversed by the learned Subordinate Judge and the judgment-debtor''s objection was allowed and the decree was held to be incapable of execution. Against this appellate decision, the present Second Misc. Appeal has been filed by the decree-holders.

The points which arise for consideration in this appeal are: (i) whether the compromise decree in question was without jurisdiction and (ii) whether, even if it was without jurisdiction, such an objection could be raised by the judgment-debtor on the present occasion and would not be rejectable either on the ground that it would be beyond the competence of the executing Court to give effect to such an objection or on the ground that this objection would be barred by constructive res judicate in the circumstances of this case. Both these questions require careful consideration.

On the first point, the position seems to t>e that, in the instant suit, the parties came to a compromise enabling the decree-holders to have a decree for eviction. It is unfortunate that the pleadings of the parties are not before us; but we have some indications of the said pleadings in the connected proceeding for stay [Civil Rule No. 1248(M) of 1964] on the earlier occasion where, in the Rule petition, it is clearly stated by the judgment-debtor itself that, in the plaint of the ejectment suit in question, there were definite allegations of requisite defaults to entitle the Plaintiffs to a decree under the above special legislation and that, in the written defence or written statement, those allegations were denied. In this context, the effect of the disputed compromise decree has to be judged. The said compromise decree itself recites that the judgment-debtor had paid the arrears of rents and mesne profits in the meantime and were undertaking a liability to pay future mesne profits. In these circumstances and read in the light of the above materials, the compromise decree in question would, in our opinion, sufficiently indicate that the parties proceeded on the footing of an admission that the Plaintiffs were entitled validly to a decree under the law on the ground of default. This approach would indeed be well supported by the decision of this Court, reported in Dr. T.S. Gupta v. Kanahialal Ruia (1963) 68 C.W.N. 353 and, on the principle, laid down in that decision, the above decree might be held to be valid on the footing that the requisite or essential jurisdictional fact has been proved by admission in view of the conduct of the parties and does not require any further proof.

Even assuming that the above decree suffered from lack of jurisdiction and, in that case, it would be lack of inherent jurisdiction, as the Court would, in the circumstances, have no jurisdiction to pass the decree on the materials before it, this objection of the judgment-debtor would, in our opinion, in the facts and circumstances of this case, be barred by the principle of constructive res judicata. It is true that, by reason of the decision of the original Court which passed the decree, this principle namely of constructive res judicata would not be attracted as the said Court would, in the circumstances, be an. incompetent Court for the purpose of passing such a decree. Vide, in this connection, Krishna Kishore De v. Amarnath Kshettry (1920) 24 C.W.N. 633. But, in the instant case, the matter has proceeded much further. The decree was put into execution, the-judgment-debtor put his objection to the execution of the decree u/s 47 of the Code of Civil Procedure, but this particular objection which, if taken and if sustainable, would have immediately put a stop to the execution proceedings, was not taken. The matter was decided by the First Court in favour of the decree-holders. On appeal, also, the said decision was affirmed and eventually this Court, sitting in Second Appeal, affirmed the said decision. It may be argued that, neither in the judgment or order of the First Court on the said occasion, nor in the judgment or order of the lower Appellate Court, is there any order for execution and, in the absence of an order for execution, an order of the executing Court would not be sufficient for purposes of constructive res judicata. It appears, however, that this Court directed that, unless the judgment-debtor complied with certain conditions, the decree-holders would be free to proceed with his execution forthwith, otherwise, after three months. This was in substance an order for execution and, whatever defect there might have been, from this point of view, in the judgments of the two Courts below on the said occasion, the said defect was sufficiently cured or rectified by the above order of this Court.

We would, therefore, hold that the instant objection of the judgment-debtor would be barred by constructive res judicata by reason of the previous miscellaneous proceeding u/s 47 of the Code as referred to hereinbefore. We will add further that the same effect has also to be given to the decision in the intervening title suit, where, also, although the impugned decree was attacked as without jurisdiction and as not binding on the judgment-debtor on other grounds, this particular objection was not taken.

The decision in the title suit was against the judgment-debtor. But, if this objection had been taken and had been upheld, the decision would have been otherwise. In such circumstances, that decision also would operate as constructive res judicata on the point against the judgment-debtor. It is true that the said previous decision was in a title suit and the present proceeding is a proceeding in execution. But it is well-established now that the rule or principle of res judicata stands on a very wide footing and, on its general principles, applicable to causes of constructive res judicata too, the bar applies, irrespective of the nature of the two proceedings concerned, provided only that the earlier proceeding was not of a summary nature and the latter regular.

What we have said above will be amply supported by the principles underlying the decisions of the Judicial Committee in (1881) L.R. 8 I.A. 123 (Privy Council) , Ram Kripal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37, AIR 1921 23 (Privy Council) and (1921) ILR 48 499 (Privy Council) and recognised and emphasised by the same and re-affirmed by the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, , Arjun Singh Vs. Mohindra Kumar and Others, and lastly in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), and underlying the said decisions too.

In the above view, there can be no escape from the conclusion that the judgment-debtor''s above objection in the instant case would be hit, and directly hit, by the rule of constructive res judicata. That indeed would be fully supported by, inter alia, the above decision of the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, and by the later decision of the Bombay High Court in Ushadevi Balwant Mantri Vs. Devidas Shridhar Joshi, where Chagla, C.J. has dealt with the matter elaborately and forcefully. The still later Full Bench decision of the Patna High Court in Baijnath Prasad Sah Vs. Ramphal Sahni and Another, would also support the above point of view, even without going to the extreme, suggested by the majority and restricting ourselves to the agreed or common view on the law of res judicata, actual or constructive, as expressed by all the learned Judges there. Usefully, also we may refer, in the above connection, to the Full Bench decision of the Andhra Pradesh High Court in A. Venkataseshayya v. A. Verayya AIR 1958 A.P. 1.

Some more words before we conclude this part of the discussion.

In the first place, it is to be observed that the instant case is not one where the previous decision, be it of the executing Court or in the title suit, was of an incompetent Court, which suffered from lack of inherent jurisdiction, initial or otherwise, in the matter or in regard to any particular question, relevant for consideration. The decisions in Ledgard v. Bull (1886) L.R. 13 I.A. 134 and Krishna Kishore De v. Amarnath Kshettry Supra would, therefore, be clearly distinguishable as also the minority observations in Baijnath Prasad Sah v. Ramphal Sahni Supra. Same remarks apply also to Katwari v. Sita Ram Tewari AIR 1921 All. 118 (F.B.), Uchit Lal Misser and Another Vs. Raghunandan Tewari and Others, and Mohan Ram and Others Vs. T.L. Sundararamier and Others, .

Secondly, the fact that the title suit in question might have been barred u/s 47 of the Code would not also be of any material consequence. The bar u/s 47 raises only a question of maintainability of the suit and does not go to the root of the Court''s jurisdiction, particularly in view of Sub-section (2) of the said section. The decision cited by Mr. Mitra on this point, namely Seth Hiralal Patni Vs. Sri Kali Nath, is no authority to the contrary and does not assist the Respondent. See in this connection on the question of principle Newton Hickie and Another Vs. Official Trustee of West Bengal, and Dhirendra Nath Chandra and Others Vs. Satish Chandra Gorain and Others, and the oft-quoted case of this Court in Hriday Nath Roy v. Ram Chandra Barna Sarma (1920) 24 C.W.N. 723 (F.B.).

In the premises, the Respondent''s objection u/s 47 of the Code will fail also on the ground of constructive res judicata.

We would, therefore, hold that, in the instant case, the judgment-debtor''s above objection has no substance and it is liable to be dismissed, both on the merits and on the principle of res judicata and, upon that view we would allow this appeal, set aside the decision of the lower Appellate Court and restore that of the First Court.

There will be no order for costs.

We are glad that we have been able, under the law, to give relief to the decree-holders, whose claim for possession under a compromise decree, obtained about fifteen years back, has been successfully resisted for all this long period.

Let the execution case now proceed with the utmost expedition.

Let the records go down as quickly as possible.

A.K. Dutt, J.

I agree.