Rahim-un-Nissa Begam and Others vs M.A. Srlnivasa Ayyangar

The respondent obtained a money decree in Original Suit No. 43 of 1913, in the District Court of Chingleput against the assets of a

Muhammadan lady named Rahimat-un-nissa Batram in Ilia hands of the defendants, and in execution attached certain Immovable properties

belonging to the deceased judgment-debtor. Rahimat-un-nissa Begam''s father Abdul Razak put in a claim petition alleging that the property

belonged to him, exclusively, and that his daughter bad no interest in it. Abdul Razak having died, the present appellants were brought on record as

his legal representatives. The sale-deed for the property admittedly stands in the name of Abdul Razak, her father. The District Judge dismissed the

claim petition and allowed execution to issue. Hence this appeal. In Original Suit No. 12 of 1909, in the District Court of Chingleput the judgment-

debtor brought a suit against her father and his alienees for recovery of these properties on the allegation that the sale-deed was benami for her and

that she was the real owner. She died during the pendency of the suit, and an order was made on the 16th of 03tober 1912, declaring that the suit

abated. The present respondent first applied to set aside the abatement on the ground that as a creditor he was entitled to the relief. That was

dismissed. (Vide Exhibit D). Thereupon he obtained Letters of Administration to his judgment debtor''s estate on the 31st of March 1915, and

again applied for setting aside the abatement. That also was rejected. The question for decision is whether, having regard to the abatement of the

suit and to the dismissal of the application for setting aside the abatement the respondent is precluded from attaching the property as that of his

judgment-debtor. We a*e unable to agree with the appellant''s Vakil on this question. The capacity in which he seeks to execute his decree is not

that of a person who has obtained Letters of Administration or generally as the legal representatives of the judgment debtor, but in his capacity as

decree-holder. We do not think that there is any estoppel against his being permitted to execute the decree.

The more difficult question is whether so long as the abatement stands the decree-holder can treat the property as that of his judgment debtor,

Two questions arise for consideration, (1) what is the effect of an order of abatement; and (2) how far does it affect persons who are not the legal

representatives of the deceased plaintiff ? On neither of these questions is there any direct authority. But it seems to us that both the questions must

be answered against the decree-holder. It has been consistently held in this Court that an order of abatement is appealable as a decree. It was first

laid down in Subbayya v. Saminadayyar 18 M.P 496 : 5 M.L.J. 63 and was followed in Meenatchi Achi v. Ananthanarayana Ayyar 26 M.P 224 :

12 M.L.J. 380 In Suppu Nayakan v. Perumal Chetty 34 Ind. Cas. 372 : 30 M.L.J. 486 : (1916) 1 M.W.N. 301 : 19 M.L.T. 364 all the earlier

authorities were reviewed and it was pointed out that an order of abatement is a judgment and should be followed up by a decree. These decisions

are supported by the dictum of the Judicial Committee in Brij Indar Singh v. Kanshi Ram 42 Ind. Cas. 43 : 22 M.L.T. 362 : 6 L.W. 592 : 126

P.W.R. 1917 : 15 A.L.J. 777 : 19 Bom.L.R. 866 : 3 P.L.W. 313 : 26 C.L.J. 572 : 104 P.R. 1917 : (1917) M.W.N. 811 : 22 C.W.N. 169 : 127

P.L.R. 1917 : 44 I.A. 218 Their Lordships say at page 109; Page of 45 C.--Ed. ""An order abating the suit, looking to the terms of Section 371

already quoted, may be said to be really tantamount to a judgment in favour of the defendant."" This observation was made with reference to the

CPC of 1882. Order XXII, Rule 9, reproduces without any material alteration the language of the old Code. The dictum of the judicial Committee

that an order of abatement operates as a judgment in favour of the defendant shows that in effect no distinction is made between a judgment

obtained on merits and a judgment obtained on failure to prosecute , the suit. So long as the plaintiff is unable to vacate the judgment and so long

as the defendant continues in possession he can plead against the plaintiff and those claiming under him that the order of abatement is conclusive of

his rights to the property. Goda Coopuramier v. Sundarammal 3 Ind. Cas. 739 : 33 M.P 167 : 6 M.L.T. 271 lays down that the only course open

to a legal representative if he wants to escape the effect of the abatement order is to apply for setting aside the abatement and that so long as it

stands unreversed, it is binding on him. Thus far it is clear that the heirs of the plaintiff who are out of possession are concluded by the abatement

orders.

Mr. Narasimha Aiyangar, for the respondent drew our attention to jayasing v. Gopal 6 Bom.L.R 638 wherein the learned Judges held that an

order of abatement does not operate as res judicata. In that case, the legal representative of the plaintiff, on whose death the suit abated, got into

possession of the property. It was decided that, being in possession, he was entitled to resist the suit brought to oust him from possession and that

the previous order of abatement did not preclude him from setting up title. Accepting this judgment as rightly laying down the law, it does not affect

the present case. In this case the heirs of the defendant in the first suit are still in possession. The learned Vakil for the respondent argued that the

possession of the father of the defendant in the first suit, after the death of his debtor which event happened earlier, must be attributed in his right as

the heir of the debtor and not a higher title : he relied upon this Court''s decision in Velayu-tham Pillai v. Subbaroya Pillai 31 Ind. Cas. 398 : 2

L.W. 989 : 18 M.L.T. 424 : (1915) M.W.N. 873 : 39 M.K 879. There is no force in this contention. The father had, in the language of the judicial

Committee, obtained a judgment declaring his rights to the property which stood in his name and which right was challenged by the plaintiff. It is

impossible to suggest that he, either voluntarily or by a fiction of law, gave up this right and substituted for it a right to a share in that property.

Velayutham Pillai v. Subbaroya Pillai 31 Ind. Cas. 398 : 2 L.W. 989 : 18 M.L.T. 424 : (1915) M.W.N. 873 : 39 M.P 879 does not lay down any

such proposition. Therefore, the right position is this, the decree-holder has to establish against a party in possession and in whose favour an order

of Court has been passed that that party is not entitled to retain possession as owner of the property. In other words the effect of upholding the

contention of the respondent will be to give a person who derives title from the alleged owner a larger right of attack against persons in possession

that than owner himself possessed. No authority has been cited for such a proposition. The decision in Ranee Chand Kour v. Partab Singh 16 C.P

98 : 15 I.A. 156 : 5 Sar. P.C.J. 243 : 177 P.R. 1888 in which the Judicial Committee held that a dismissal for default does not operate as res

judicata has no bearing on this question.

Now comes the last point, whether the respondent who is not claiming title under his deceased judgment-debtor, is affected by the order in

abatement. We have pointed out already that the legal representatives are barred. Is there any warrant for giving to a stranger a better title than to

the alleged owner or his legal representative? The principle of res judicata may not apply to a stranger : but he has to displace what has been

described in more than one judgment of this Court a chain in the title of the defendant. To repeat that attempt the defendant can plead the previous

judgment. There are numerous cases in this Court which have held that a judgment as a chain of title is an exception to the rule as res inter alias

acta. Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar 6 Ind. Cas. 229 : 33 M.P 483 : 8 M.L.T. 33 : 20 M.L.J. 546 : (1910) M.W.N. 479;

Sayam Ramamoorthi v. The Secretary of State 19 Ind. Cas. 656 : 36 M.P 141 : 24 M.L.J. 469.; Suppa Bhattar v. Suppu Sokkaya Bhattar 30

Ind. Cas. 862 : 29 M.L.J. 558 : 18 M.L.T. 402 : (1915) M.W.N. 829 : 2 L.W. 1005 and Khaji Sayyid Yusuf Sahib v. Ediga Narasimhappa 44

Ind. Cas. 367 : (1918) M.W.N. 175 : 8 L.W. 377 all lay down this proposition. We see no reason for not following these decisions.

It was said that the cause of action for the execution is different from the cause of action for the suit brought by the judgment-debtor against her

father. We fail to see the difference. The decree-holder is agitating the same right and is challenging the same infringement which formed the basis

of suit in the previous litigation. We must, therefore, hold that the right and the infringement are the same on both the occasion. For these reasons

we are of opinion that the decree is not executable against the property as if it belonged solely to the judgment-debtor. We must allow the appeal

and set aside the order of the District Judge. Each party will bear his own costs throughout.