K RAJAMOULI Vs. A V K N SWAMY

JUDGEMENT

(1.) A dispute out of a partnership firm arose between the appellant and the respondent. With the result, the same was referred to arbitrations. The arbitrators appointed by the parties entered into the reference and appointed an Umpire. The Arbitrators, on 11-7-1987, gave an award for a sum of Rs. 7,00,000/- to be paid by the appellant herein to the respondent in three instalments. The respondent filed a suit against the arbitrators and the appellant. The said suit was numbered as Suit No. 1377/87. The prayer in the suit was for a decree in terms of the arbitration award. The said suit was decreed for a sum of Rs. 6,50,000/-. It is relevant to mention here that the said decree did not provide for any pendente lite interest. Thereafter, the decree holder put the decree in execution. In the execution proceedings, the decree holder claimed pendente lite interest @ 24%. However, the claim of interest by the respondent-decree holder was rejected by the executing Court. The decree holder, thereafter, filed Civil Revision Petition before the High Court against the order passed by the executing Court. The said Revision Petition was dismissed by the High Court on 18-9-1991. The decree holder filed Interlocutory Application No. 1954/91 before the trial Court for amendment of the decree under Section 152 of the Code of Civil Procedure. The prayer in the said interlocutory application was to grant pendente lite interest. The trial Court, on 15-9-1992, rejected the said application of the decree holder. The decree holder, thereafter, preferred a Civil Revision Petition before the High Court against the order of the trial Court rejecting the application. The said Civil Revision Petition was numbered as C.R.P. No. 3077/92. The High Court, on 27-11-1992, allowed the said Civil Revision Petition and awarded interest to the decree holder by amending the decree of the trial Court. On 26-12-1992, the appellant herein filed a review petition before the High Court in C.R.P. No. 3077/1992. During the pendency of the said review petition, the appellant herein filed a Special Leave Petition against the main judgment of the High Court dated 27-11-1992 on 10-1-1993. Subsequently, the said special leave petition came up for hearing before a Bench of this Court on 1-2-1993. This Court summarily rejected the said special leave petition without assigning any reason. On 2-3-1993 the appellant filed a Review Petition before this Court in S.L.P. (C) No. 750/93. This review petition was dismissed on 16-4-1993. On 17-2-1993 the High Court dismissed the review petition. The appellant, thereafter, filed Special Leave Petition against the Order D/- 17-2-1993 passed by the High Court rejecting the review petition. This Court, on 29-10-1993, granted leave and the Special Petition was converted into this civil appeal.

(2.) Mr. B. Kanta Rao, learned counsel appearing for the respondent raised a preliminary objection that earlier Special Leave Petition filed by the appellant having been dismissed by this Court, the second Special Leave Petition was not maintainable being barred by the principle of res judicata. In support of his contention, learned counsel relied upon the decisions of this Court in Abbai Maligai Partnership Firm vs. K. Santhakumaran, (1998) 7 SCC 386; Sree Narayana Dharmsangam Trust vs. Swami Prakasananda, (1997) 6 SCC 78 and State of Maharashtra vs. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463. Learned counsel appearing for the appellant countered the argument by relying upon the decision of three Judge Bench of this Court in Kunhayammed vs. State of Kerala, (2000) 6 SCC 359. In this decision, it was held that on dismissal of a special leave petition without giving any reason, the main judgment of the High Court does not merge with the order of the Apex Court and, therefore, the order of the Apex Court does not constitute res judicata in case a Special Leave Petition filed against the order passed in the review petition against the main judgment of the High Court. In the said decision Abbai Maligai Partnership Firm's case (supra) which is also a three Judge Bench decision was considered and explained in paragraph 26 of the judgment which runs as under:

(3.) In nutshell, the decision in the case of Abbai Maligai Partnership Firm (supra) was distinguished on the ground that the question of merger of the judgment of the High Court with the order of Supreme Court dismissing the special leave petition was not considered and further in Abbai Maligai Partnership Firm's case (supra) the review petition was filed after a long delay of 221 days after the special leave petition was dismissed by the High Court which was held to be abuse of process of law.