GEORGE VARGHESE Vs. EAPEN VARKEY

JUDGEMENT

(1.) Defendants 1 to 3 are the sons of Abraham Varghese, from whom amounts were due to the plaintiff under a simple mortgage charged on the suit property. Defendants inherited the property after his death subject to the mortgage charge. Third defendant obtained Ext.B1 order for discharging the debt under the provisions of the Kerala Agriculturists' Debt Relief Act 11 of 1970. Plaintiff and defend ants l and 2 were respondents 1 to 3. The scaled down debt was discharged on the whole by payment. The present suit is for realisation of the balance amount from the hypotheca and defendants 1 and 2 on the allegation that they are not agriculturists entitled to the benefits of the Act. The suit was decreed repelling the contentions. Second defendant was also found to be an agriculturist, but not the appellant first defendant. Decree was granted against him (not personal) and the hypotheca alone.

(2.) Contention of the first respondent plaintiff in this suit and Ext.B1 was that defendants 1 and 2 are not agriculturists because they are paying income tax and sales tax. That allegation was not established. But in Ext. A4 compromise, which resulted in a decree obtained by the first respondent against the appellant, he admitted that he is not entitled to the benefits of the Act. That was the sole basis for finding that he is not an agriculturist. That decree is dated 24-9-1971. A compromise decree also can operate as res judicata. But Ext.B1 order binding on plaintiff and defendants 1 to 3 was rendered later on 24-7-1972. That petition was filed as if the appellant and respondents 2 and 3 are agriculturists entitled to the benefit of the Act. That claim was denied not on the ground of res judicata on account of Ext.A4, but because they are paying income tax and sales tax. That contention was not established and the court found in Ext.B1 that defendants 1 and 2 are prima facie agriculturists entitled to the benefits of the Act, though the claim of the third defendant petitioner as agriculturist alone was considered and decided on the merits as that question alone was found necessary to be decided ultimately.

(3.) Anyhow, atleast the prima facie finding in favour of defendants 1 and 2 is also there in Ext.B1. Plea of res judicata is a contention which might and ought to have been raised by the first respondent in that case against the appellant. In Ext.Bl proceedings, first respondent was having the position of a plaintiff as he is the person ultimately entitled to get an order which alone is executable as a decree. When the third defendant petitioner sought relief on the ground that himself and respondents 2 and -3 (defendants 2 and 3) are agriculturists entitled to the benefit of the Act, the first . respondent, who actually contended that they are not agriculturists, was bound to put forward res judicata on the basis of Ext.A4 also as one of the contentions to negative that claim. Not having done so and suffered an adverse order, he cannot now put forward res judicata as a plea because that contention is barred by the general principles of constructive res judicata even though S.11 Explanation (IV) of the Code of Civil Procedure as such may not apply. Even without that prima facie finding in favour of the appellant and second respondent in Ext.B1, the position is that such a contention, which might and ought to have been raised, will be deemed to have been raised and was directly and substantially in issue and decided against the first respondent. That is also the effect of a claim which was not expressly granted by the decree or order. Ext. A4 was superceded by Ext.B1, which was also inter parties, and it is capable of acting as res judicata on general principles. Therefore, on the pleadings and evidence, the only possible conclusion was that the appellant is an agriculturist entitled to the benefits of the Act. If so, on that ground alone, the decree is not sustainable.