THAHER UNNISSA BEGUM Vs. SHERFUNNISSA BEGUM

JUDGEMENT

(1.) This is an appeal by one Thaher-unnissa Begum, wife of Syed Jaffar Mohideen Sahib, the judgment-debtor, against the order of the Principal Subordinate Judge, Salem, dated 14-7-1950, in R. E. P. No. 244 of 1949, in O. S. No. 34 of 1944 overruling her objection to the sale of certain properties, claimed by her to have been granted on 'Saswatha' patta to her by the judgment-debtor, in execution of the decree in O. S. No. 34 of 1944 by the decree-holder, and directing the sale to proceed.

(2.) I have perused the entire records, and heard the learned counsel on both sides, and see no substance in this C. M. A.

(3.) The appellant herein had claimed the same properties as hers by virtue of a patta given to her by her husband, the judgment-debtor, and had urged that her husband, the judgment-debtor, had no longer any rights in them except to the rent reserved. But she had not pressed that claim petition with tbe consequence that it was dismissed. She did not file also any suit to set aside the dismissal of the claim petition within the one year allowed by law. The lower Court, relying on the decision in -- 'Kandasami Mudaliar v. Sivagurunatha Mudaliar', AIR 1935 Mad 328 (A), was inclined, to think that the claim order could not become conclusive against the appellant, because the claim petition was dismissed 'as not pressed and not on merits'. But, a Full Bench of this Court has, later on, in -- 'Cannanore Bank Ltd. v. P. A. Madhavi', AIR 1942 Mad 41 (FB) (B), held expressly that if a claim petition under Order 21 Rule 58 was not pressed and was dismissed without obtaining the permission of the court to withdraw it without prejudice to tbe rights of the petitioner, the dismissal would amount to an adverse order within the meaning of Order 21, Rule 63, C. P. C. and that the petitioner, if she wished to reopen the matter and assert the same claim, was bound to file a suit within one year from the date of the order. It has also been held by a Bench of this court in --'Yarakkayya v. Venkata Krishnamaraju', AIR 1918 Mad 693(1) (C). that when the order dismissing a claim petition was not set aside by filing a suit within one year, as contemplated under Order 21, Rule 63, it will become conclusive and the same claim could not be agitated again.' It is obvious therefore that the decision AIR 1935 Mad 328 (A), must be deemed to have been overruled by the Full Bench decision quoted above. So, 'res judicata' operated against the appellant, and the appellant had absolutely no right to come and press this stale claim of hers, which had been dismissed, by way of counter in this E. P. On this ground alone, this C. M. A. must be dismissed.