BHAVANI AMMA Vs. NARAYANA ACHARYA

JUDGEMENT

(1.) This second appeal arises out of a suit brought by respondents 1 and 2 for recovery of arrears of maintenance due to the second plaintiff undr a maintenance karar dated 15-6-1900 marked Exhibit A-1 in the suit. The question presented for decision is whether the plaintiffs are entitled to value the claim for the rice muras at the prevalent market rates or at the fixed rate of Rs. 4/notwithstanding the undisputed fact that the market rates ranged between Rs. 10/- Rs. 23/-per mura of rice during the relevant period. The Courts below held that the plaintiffs are entitled to claim at the market rates on the ground that the decision in a previous suit marked Exhibit A-12 operated as Res Judicata on the issue now raised for decision. The appellants who are the legal representatives of the contesting defendant, contended that both on a construction of the terms of Exhibit A-1 and also by reason of the judgment in Original Suit No. 35/1919 on the file of the District Munsiff, Karkal, marked Ex. B-1, the plaintiffs are not entitled to claim anything more than Rs. 4/-per mura of rice. The learned Counsel urged that Exhibit A-12 not being a certified copy of the judgment, is inadmissible in evidence and secondly, since the pleadings in the said suit not having been produced, it cannot be ascertained from the judgment as to whether the price of rice muras was claimed at the market rate or the fixed rate of Rs. 4/-. He further submitted that in the judgment in Exhibit B-1 the issue now in dispute was expressly decided and, therefore, the said judgment operated as Res Judicata in bar of the plaintiff's present contention.

(2.) For decision of this appeal, it is unnecessary to consider whether Exhibit A-12 is admissible, for, I am of the opinion that the said judgment does not operate as Res Judicata. The issue now raised, it is not disputed by the learned Counsel for the respondents, was not expressly raised or decided in the judgment contained in Exhibit A-12. The Courts below presumed that the value of rice was claimed at the market rates from the total amount decreed in the suit. The judgment does not disclose the rate of interest claimed and decreed on the arrears of maintenance annually payable. In the absence of the copy of the plaint in the said suit, it cannot be said that the plaintiff in that suit claimed the value of rice muras at the market rates. Shri N.T. Raghunathan, the learned Counsel for the respondents, fairly concedes that Exhibit A-12 may not operate as Res Judicata of the question in issue in this suit. He submitted that the decree in the suit O. S. No. 35/1919 aforesaid was the subject-matter of appeal as seen from the courts below and the judgment rendered in the appeal has not been produced in this suit. The contention of the learned Counsel for the respondents is well-founded. When the judgment and decree of a Court are appealed against, the decree of the Court of first instance is merged in the decree of the appellate Court though the appellate Court may affirm the decree of the trial Court. What operates as Res Judicata is not only the decision but the grounds on which the decision is based. The interpretation of the relevant clause in Exhibit A-1 is the ground for decision. In the absence of the judgment on appeal, there is nothing on record to indicate the grounds of the decision of the appellate Court. The judgment in Exhibit B-1 having been superseded by the decree and judgment made in the appeal, the former judgment cannot be pleaded in bar of Res Judicata. This view is supported by a decision of the High Court of Calcutta in Sekendar Ali Mridha v. Sadaruddin Bhuniya reported in AIR 1935 Cal 792.

(3.) Since the judgments in Exhibit B-1 and Exhibit A-12 do not operate as a bar for the decision on the issue in the suit, that question has to be decided on the interpretation of the relevant clause in Exhibit A-1 which is to the effect that maintenance is payable to the second plaintiff at the rate of eight muras of Kuchige and one mura of Belthige rice and Rs. 4/- in cash, by the Vishu Sankramana of every year, and that on default, according to the local custom, the value of rice due is payable at the rate of Rs. 4/- per mura. It is undisputed that the market price of rice muras during the year 1944 was RS. 10/- and that for 1953 Rs. 23/-. It is urged by the learned Counsel for the appellant that Exhibit A-1 confers on his client the alternative right to pay either in kind or in cash I am unable to accept this contention.