JANAKAMMA Vs. A. GOVINDRAJ MUDALIAR

JUDGEMENT

(1.) THE facts with reference to which this second appeal is sought to be filed have been set forth clearly both in the judgment of the first court, and the judgment of the learned District Judge in appeal. We are now concerned with the question which originally arose under issue 5, whether the suit was barred by the principle of constructive res judicata in view of the order on E. A. No. 114 of 1956.

(2.) AS the learned District Munsif observes, E. A. No. 114 of 1956 was a petition filed by the first plaintiff and an order was passed dismissing it on 5 -3 -1956. Admittedly, the first plaintiff did not come forward with a suit under Order XXI, Rule 63, C. P. Code within a year from the date of this order. The first Court relied upon the following decisions : Aisamma v. Moidin Kunhi Beari, 45 MLJ 690 : (AIR 1924 Mad 111), Nara -simha Chariar v. Raghava Padayachi : AIR1945Mad333 and Cannanore Bank Ltd. v. Madhavi, : AIR1942Mad41 , for the view that the order would be conclusive, and would bar any further suit of this character, unless the order is challenged within a year as provided for by the processual law. In dealing with the same point, the learned Additional District Judge dealt with the contention that the order passed in E. A. No. 114 of 1959 was not oil the merits, but that that application had been dismissed upon, the ground that the petition was belated. The learned Judge has set forth two passages, the first from Venkataratnam v. Ranga -nayakamma, ILR Mad 985 : (AIR 1919 Mad 738) and the second Mt. Asiz Jahan v. Sardar Singh, (S) : AIR1955All241 (FB). In the Full Bench decision of this court referred to earlier, it has been very clearly stated that an order rejecting a claim petition for belatedness is, in effect, an order rejecting the claim itself, to which the provisions of Oder XXI, Rule 63 would apply.

(3.) : AIR1935Mad1015 , was a decision of a single Judge (Varadachariar J.) in which the order passed by the executing Court was both vague and difficult to classify as a final order upon the claim petition. In terms, that order declared that the claim would be notified, and that the petition was recorded subject to that notification. The learned Judge (Varadachariar J.) expressed his regret at this land of practice, and finally observes that even if a dismissal of a claim petition should be interpreted as an implied adjudication against a claim, the order passed in the particular case could not even be considered as a final order on the claim petition, and that it did not preclude the executing court on a later occasion from investigating the claim on the merits.