Narayanan Nair and Others vs Mathai and Others

M.S. Menon, J.—The plaintiffs in O.S.No. 238 of 1123 of the Munsiff''s Court, Thiruvalla,-members of a Nair Tarwad-are the appellants in this second appeal. The karnavan of their tarwad executed Ext. B, a usufructuary mortgage dated 4-5-1045, and the mortgagees under Ext. B executed Ext. C, a sub-mortgage dated 28-12-1058. By the rel�ase deeds Ext. D dated 11-5-1061 and Ext. E dated 7-1-1080 the usufructuary mortgage created by Ext. B has ceased to exist. What the present suit seeks is the redemption of the sub-mortgage created by Ext. C and recovery of the property for and on behalf of the tarwad of the plaintiffs. Ext. III is the decree in an earlier suit for the redemption of the sub-mortgage created by Ext. C, O. S. No. 858 of 1095 of the Munsiff''s Court, Thiruvalla. The trial court found that the said decree does not, and the court of first appeal that it does, op�rate as res judicata.

The contentions urged before us on behalf of the appellants are that Ext. III is not binding on their tarwad, and that even if it is binding, it does not amount to an adjudication which can operate as res judicata. The first contention is based on section 25 of the Travancore Nair Act, 1088, which provides that:

no decree shall bind a Tarwad, unless it be obtained in a suit against the Karnavan as such and the s�nior Annndaravan of his Thavazhee, and of every Thavazhse collateral to the same if any.

It is coramon ground that the then karnavan of the tarwad figured as a plaintiff in O. S. No. 858 of 1095 and that all the senior auandaravans were not parties to that suit. It follows that if the section is attracted, the decree cannot be considered as binding on the tarwad of the appellants.

We entertain no doubt that the section applies only to suits against a tarwad and not to suits like O. S. No. 858 of 1095 instituted for and on behalf of a tarwad. In 27 T, L. J. 908 the Travancore High Court said :

Obviously, it relates only to decrees obtained in suits instituted against the Tarwad.;

and:

We cannot, therefore, accept the contention that Section 25 of the Nair Regulation applies also to suits instituted by the Karnavan on behalf of the Tarwad.

ln 1954 KLT 620 Subramonia Iyer J. said:

Section 25 of the Nair Act, 1/1088, leaves no room for doubt as it clearly says that the suit, the binding character of the decree wherein is dealt with by section 25, should be one against the tarwad.

The second contention also appears to be equally unsustainable. Ext. II, the petition filed by the plaintiffs and in pursuance of which Ext. III was passed reads as follows;

Ext. III refers to Ext. II and says:

It is impossible to hold that this decree will not op�rate as resjudicata.

Counsel for the appellants suggested that this disposal should be considered as one under Order 9, Rule 8, of the Code of Civil Procedure, 1908, which provides:

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit is dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

We cannot accede to this submisston,

The contention of the defendants now and in Ext. I, the written statement filed in O. S. No. 858 of 1095, was that the property in controversy did not belong to the tarwad of the plaintiffs and that it was not covered by Ext. C, That contention was accepted by the karnavan of the tarwad, and it was on the basis of that acceptance that Ext. II was filed and Ext. III was passed. He who admits and runs away cannot return to fight on another day.

In (1895) 1 Ch. 37 Lord Herschell said :

The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.

The passage was quoted with approval in AIR. 1946 Lab 73. What was decided by the Lahore High Court will be clear from the following extract from the head note:

An implied finding based on an agreement or admission by a party operates as res judicial in the same way as a finding based on an adjudication by the Court.

The point to be considered in deciding a question of res judicata is whether the judgment in the previous case could be sustained without the determination of the question at issue in the subsequent suit, even though the subject-matters of the two suits are different. If the judgment in the previous suit could not be sustained without the determination of the question in the subsequent suit the previous decision operates as res judicata and bars the subsequent suit.

Where in a mortgage suit a distinct issue is raised as to whether the mortgagor was a member of an agricultural tribe and whether the mortgage contravenes the provisions of the Punjab Alienation of Land Act and in a compromise, the mortgagor agrees to a decree for sale being passed against him on the assumption that the mortgage in the su�t was perfectly valid and did not contravene the provisions of the Punjab Alienation of Land Act, the judgment-debtor is precluded, by reason of the operation of the rule of res judicata, from pleading that he belonged to the agricultural tribe and therefore the mortgaged land was immune from sale in execution of the consent decree.

Even if O. S. No. 858 of 1095 is considered as withdrawn-we see no warrant for such a conclusion-it will be of no assistance to the appellants before us. No permission of the court for a withdrawal from the suit with liberty to institute a fresh suit in respect of the same subject-matter was sought or obtained by the plaintiffs under Order 23, Rule 1(2) of the Code of Civil Procedure, 1908. Rule 1(3) of Order 23 specifically provides that where the plaintiff withdraws from a suit without the permission referred to in Rule 1(2), he shall be precluded from instituting any fresh suit in respect of the same subject-matter.

Counsel for the appellants drew our attention to AIR 1950 FC 1. The controversy in that case was only as to whether there was a withdrawal of the earlier suit within the meaning of Order 23, Rule 1, of the Code of Civil Procedure, 1908. In the circumstances proved in that case and stated in the judgment, the Federal Court carne to the conclusion that there was no such withdrawal of the earlier suit. In the light of what is stated above the second appeal must fail and has to be dismissed with costs. Judgment accordingly.