ORAMANLAL MOHAMAD KUNJU Vs. DANIEL KURUVILA

JUDGEMENT

(1.) The 1st defendant judgment debtor is the appellant. To the execution petition filed by the assignee decree holder the first defendant raised an objection that the decree in this case is not executable as against him, because it has been superseded by the decree in O.S. 39 of 1110 of the Quilon District Court. This objection was overruled by the executing court and hence this appeal.

(2.) Ext. I is the copy of the judgment in this case. (O.S. 567/09 of the Krishnapuram Munsiffs Court). It shows that the plaintiffs claim was for recovery of the amount which was mentioned in the sale deed dated 22.9.1106 executed by the 1st plaintiff and others in favour of the 1st defendant, as having been paid ready cash but was not actually paid. The 1st defendant contested the claim. His contentions were negatived and a decree was passed in favour of the plaintiff. This decree has not been modified or reversed. In fact there has been no appeal against it and thus it became final and conclusive as between the parties to it. All the same the 1st defendant has put forward the judgment in O.S. 39 of 1110 as a bar to the execution of this decree. Ext. VII is the copy of the judgment in O.S. 39 of 1110. That was a suit by the same plaintiff for recovery of the balance of consideration due under the sale deed dated 22.9.1106 already referred to. 1st defendant resisted the claim in that suit also and contended that the sale deed was vitiated by fraud and misrepresentation. Ext. VII shows that this contention of the 1st defendant was upheld to some extent. At the same time it is seen that the plaintiff was given a decree for recovery of the reserved amount from some of the plaint items.

(3.) The only point for decision in this appeal is whether Ext. VII decision operates as a bar to the execution of the decree in this case. Even though the claims in the two suits arose out of one and the same sale deed it is clear that the two claims were distinct and separate from each other. Ext. VII suit was strictly confined to the claim for the recovery of the amount reserved in that sale deed. It cannot be said that the claim for the ready cash consideration due under that document which had already been decided by the present decree arose for consideration either remotely or by implication in Ext. VII case. It follows therefore that there is no basis for the 1st defendants contention that the decree in this case has been superseded by the decree in Ext. VII case. Since the two decrees are entirely for two different reliefs it cannot be said that there is any conflict between the two decrees. The principal that in the case of conflicting decrees the later decrees should prevail over the earlier one can apply only if such decrees are in respect of the same subject matter and between the same parties. The learned advocate for the appellant argues that the finding in Ext. VII that the sale deed dated 22.9.1106 executed by the first defendant is vitiated by fraud and misrepresentation, has the effect of negativing all claims based on the sale deed. We do not see any force in this argument. In spite of the finding in Ext. VII regarding the nature of the sale deed the claim for the amount reserved under that document was allowed even in that case. That apart, it is not the function of the executing court to go into the question of the effect of the findings recorded by the Trial Court on the different issues involved in the case. Executing court has only to take the decree as it stands and to enforce it, unless it is shown that the claim under the decree does not subsist or that the decree itself is a nullity. The decree in the present instant was passed by a court of competent jurisdiction and the first defendant had no case that the decree is a nullity or that it has been satisfied. The mere fact that in Ext. VII judgment in the subsequent suit an adverse finding was recorded against the same plaintiff regarding the nature of the sale deed which formed the basis of the decree in question, cannot in any way affect the rights under that decree which had already become final. In dealing with a similar question in Md. Obed Ullah Khan v. Md. Abdul Jalil Khan, (AIR 1945 Allahabad 121) it was observed as follows:-