R. SRINIVASA ROW Vs. KALIAPARUMAL

JUDGEMENT

(1.) THIS petition by a plaintiff is to revise the finding of the learned Subordinate Judge of Cuddalore on the issue whether the finding in an earlier litigation in O.S. No. 56 of 1958 operated as res judicata against the plaintiff. The Subordinate Judge found that the earlier finding so operated.

(2.) THE sons of the plaintiff instituted the earlier suit impugning a sale executed by their father, who was the first defendant there, in favour of the 8th defendant on the ground that it conveyed joint family properties and that the sale was not supported by necessity or benefit and therefore was not binding on them. The first issue which the court had to decide in the earlier litigation was whether the suit properties were joint family properties, as contended by the plaintiffs, or whether they were separate properties of the first defendant, as contended by defendants 2 to 10. As I said, that issue was decided against the plaintiff's. In view of this, the court in the earlier suit stated:

(3.) IT is, however, contended for the respondents that no revision lies under Section 115 C.P.C. against a finding on an issue in a suit. It is also said that if the petitioner felt aggrieved by the decree in his suit, he would have a right of appeal, and that on this ground too, he could not invoke Section 15. Neither of these grounds, as I think, is correct. The word 'case' in Section 115 which is not defined in the Code is of wide import and may well cover a finding on an issue. Often questions relating to Court fee and involving jurisdiction are tried as preliminary issues and revision petitions are entertained from orders passed on such questions. An issue relating to res judicata involves a question of jurisdiction. Where the court on such a question takes a view against the plaintiff and bars a particular question which arises in the suit being raised. I do not see why that will not come within the ambit of the word 'case' in Section 115. As regards the other objection of the respondents, it is obvious that no appeal would lie against a finding on res judicata which by itself did not dispose of the suit.