A THAKURDAS Vs. A VENILAL

JUDGEMENT

(1.) This revision petition is directed against the judgment of the Civil Judge, Civil Station, Bangalore, by which he disposed of four Interlocutory Applications Nos. 54, 55, 56 and 57 of 1975 arising from a suit for partition in which proceedings for passing of a final decree are pending. 0. S. No. 22/60 was filed by one Smt. Umia Ben, for partition of moveable and immoveable properties left by her deceased father Ambar,am Fakirbhai Vekharia. The deceased died on 4-12-1959 leaving six sons (defendants 1 to 6) and five daughters including the plaintiff. One of the daughters Umia Ben who was the former defendant No. 7 was subsequently transposed as plaintiff. It was stated that that she had sold her rights in the properties to the defendants (2, 4 to 6). The suit was obviously for partition of the properties and also for rendition of accounts. It appears, subsequently defendants 1 to 6 applied for being transposed as plaintiffs but their respective applications were rejected. The suit was compromised and a decree that followed indicated that the plaintiff was entitled to Rs. 70,000/- and similarly the other four sisters would be entitled to Rs. 70,000/each, which amount was to be paid by the defendants 1 to 6 and the respective shares of these defendants were also specified in the compromise decree. After this compromise decree which was passed on 26-11-1970 the parties seem to have waited for some time and on 28-1-1972, Thakordes (defendant-1) filed an application in which he stated, inter alia, that a preliminary decree was passed on 26-111970 and the proceedings be initiated for preparation of a final decree. He claimed for partition of the properties and with that purpose in view, asked for the appointment of a Court Commissioner. It appears, as many as three Commissioners were appointed by the Court, but it was ultimately found that the properties, which included a residential house at the Hospital Road and a shop at the Commercial street were incapable of being partitioned. Accordingly, the court considered that these properties be sold and the proceeds be distributed amongst the co-sharers. The defendants 2, 4 to 6 being dissatisfied with the order of the court filed C. R. P. 2920/73 against defendants 1 and 3 before the High Court and on 14-8-1974 again, a compromise was brought into existence between the parties. In that compromise it was laid down, that the total value of the disputed house and the shop was Rs. Fifteen Lakhs and that the defendants 1 and 3 could take the house and the shop after paying Rs. 10,71,428.50 the value of the share belonging to defendant-2 and defendants 4 to 6. This payment wag to be made before 14-11-1974 Failing that, the defendants 2, 4 to 6 were entitled to purchase the two properties by making total payment of Rs. 3,50,000 to the defendants I and 3. It appears the defendants 1 and 3 did not deposit the amount and as such the defendants 2, 4 to 6 became entitled to vacant possession of the two properties as they deposited Rupees 3,50,000/- on 16-11-1974. Thereafter, I. A. No. 45 was filed by defendants 2, 4 to 6 in which a prayer was made that vacant possession of the two properties be handed over to them and defendants I and 3 should vacate the two premises. It was also averred that the sale certificate be issued in their favour and that the stock in-trade kept within the premises of the shop be got removed and disposed of according to law. There was some dispute in regard to the payment of estate duty and it was further prayed that the defendants I and 3 be asked to pay their share of the estate duty which was a charge upon the two properties. In fact, the Estate Duty Officer had effected attachment of the amount deposited, in lieu of payment of the estate duty. There was also a claim of Vijaya Bank which had advanced some money to these defendants. Defendants 1 and 3 filed their objections in I. A. No. 45 and they inter alia submitted that the amount was not properly deposited and hence defendants 2, 4 to 6 could not be considered to have become the owners of the properties, and that the decree as such was not executable and that a direction regarding the stock-in-trade kept within the shop preraises was required to be given by the court. After 1. A. No. 45 was decided by the executing court, a revision against that decision which was against the defendants 1 and 3, was taken in C. R. P. No. 45/76 to the High Court. In that revision, all the points of contention raised by the respective parties, were gone into, and the learned Judge dismissed the revision on 11-2-1976. Thereafter, defendant-i Thakordas filed 1. A. No. 54 while defendant-3 A. Ramanlal filed 1. A. Nos. 55 and 57. It was contended by defendant-1 that he is not in possession of either of the two properties and as such, the amount of Rs. 1,75,000/- cannot be withheld from payment to him. Accordingly, he asked for that payment. Defendants 2, 4 to 6 however, filed objections, saying that unless vacant possession was delivered by defendants-1 and 3 neither of them would be entitled to withdrawal of their share of the amount deposited. In I. A. Nos. 55 and 57 the defendant-3 contended that some alternative arrangement for payment of estate duty was accepted by the Estate Duty Officer and as such his payment of the share in the amount could not be withheld, Besides, he contended that he could not be asked to deliver vacant possession unless proper arrangement was made by the court for disposal of the stock-in-trade. Defendent 3 in I. A. 57 contended that under the provisions of the Urban Land Ceiling and Regulation Act, prior permission was required before the sale certificate could be granted to the defendants 2, 4 to 6 and unless the said certificate is granted possession cannot be taken from defendant-3. I, A. No. 56 was filed by the Estate Duty Officer and according to him, defendant-3 is liable to pay the estate duty and as such he could not be given his share in the amount unless he discharged that liability, The learned Civil Judge dismissed 1. A. Nos. 54, 55 and 57 while he allowed 1. A. No. 56 inasmuch as he directed that the defendants I and ~ had to deliver vacant possession to the defendants 2, 4 to 6, and only thereafter they would be entitled to receive their respective share in the amount deposited by the other defendants. As regards the estate duty, the decision was, that the defend-ant-3 was liable to pay the estate duty as requested by the Estate Duty Officer in 1. A. 56. Against that decision of the learned Civil Judge, the present revision is instituted by the defendants I and 3 and since all the L A. applications have been decided by a single order, only one revision has been filed which too can be disposed of by a single judgment

(2.) The foremost contention of the learned counsel for the respondents has been, that the grounds of objections thus raised by the defendants 1 and 3 were as well, the grounds of attack or defence in the interlocutory application proceedings that culminated in the decree of the High Court in C, R. P, 45/76, As such, on the principle of res judicata the petitioners are debarred from re-agitating these grounds. The concept of res judicata has its genesis in the finality of litigation. It is fairly settled that the principle of res judicata can be invoked even in the Interlocutory proceedings arising out of the same suit. Most of the grounds thus adumbrated on behalf of the petitioners were no doubt the grounds of attack in the objections filed during the proceedings culminating from I. A. 43/75 which resulted with the decision of the High Court in C. R. P. 45/76. Besides, the other grounds related to matters which might and ought to have been made a ground of attack or defense in those proceedings. In that connection, reference can be made to the petition I, A. 45/75 which was instituted by defendants 2, 4 to 6 and the objections filed by defendants I and 3. Both the judgment of the learned Civil Judge as well as the decision of- the High Court in C. R. P. 45/75 indicate, that the question regarding vacant possession and the circumstances under which such- vacant possession could be awarded in favour of defendants 2, 4 to 6, the question regarding the stock-in-trade and direction relating thereto, the matter concerning the payment of estate duty and the question as to the excitability of the decree were very much points in dispute between the parties. It was objected to by the defendants I and 3 during those proceedings that the compromise decree by itself was not capable of being executed. It was rather pleaded that the compromise agreement, if at all; can be enforced in a suit for specific performance of that contract. The plea referable to the sale certificate was also raised and it was contended that unless the sale certificate was granted, vacant possession could not be thought of in favor of the defendants 2, 4 to 6, The learned single Judge of this court while deciding C. R. P, 45/76 decided all these questions and, in my opinion, that decision will certainly be res Judicata for the present proceeding.

(3.) Even if any particular plea was not raised at that stage, and if it could be stated that the said plea might nd ought to have been raised as a ground of attack or I defense, it will be deemed a plea directly in issue and on that ground as well the decision arrived at in C. R. P. 45/76 will be res judicata in the present proceeding. Apart from this legal objection which, to my mind, should prevail, even otherwise there is no merit in any of the objections raised by the defendants I and 3.