GHANSHIAM SINGH Vs. HAR PIAREY

JUDGEMENT

(1.) ONE Smt. Parvati owned three shops. One of these shops was let out to one Khursheed and the other to Shambhoo opposite party No. 2. Smt. Parvati obtained a decree for ejectment against Khursheed. Before the decree could be ex ecuted Smt. Parvati died. Ghanshibm Singh the applicant, made an application for execu tion of the decree on the ground that Smt. Parvati had executed a will in his favour and he was thus her legal representative. An other application was made by opposite party No. 1 Smt. Har Piarey claiming to be- the step daughter of Smt. Parvati. A question accordingly arose on the execution side as to which of the two rival claimants was the representative of Smt. Parvati. This ques tion was heard and finally decided by the execution Court in favour of Ghanshiam Singh. Smt. Harpiarey, treating the decision given by the execution Court as a decree, filed an appeal and thereafter a second ap peal, both of which failed. Subsequently, Shambhoo, opposite party No. 2 who, as al ready pointed out above, is tenant of the other shop filed an interpleaded suit imp leading Ghanshiam Singh and Smt. Har Piarey as defendants. The rent which was due from him was deposited in Court. Shambhoo thereafter went out of the picture. Smt. Har Piarey was treated as plaintiff and Ghan sham Singh as defendant to the suit. Ghan shiam Singh inter alia pleaded that the deci sion given by the execution Court in the ear lier case in his favour to the effect that he was the legal representative of Smt. Parvati operated as res judicata between him and Smt. Harpiarey and the claim of Smt. Harpiarey was liable to be repelled on this ground alone. The trial Court, however, did not agree and relying upon the decision of a Division Bench of this Court in Sh anker Lal v. Shyam Sunder Lal, AIR 1934 All 730 took the view that the suit was maintainable not withstanding the decision of the execution Court. The issue about the bar of res judi cata was decided as a preliminary issue and against the decision of the trial Court a revision was filed before the District Judge. The revision having been dismissed, Ghan shiam Singh has filed the present revision in this Court.

(2.) WHEN this revision came up for hearing before a learned Single Judge he came to the conclusion that another Divi sion Bench had taken a decision contrary to that taken in Shanker Lai's case supra AIR 1934 All 730 in the case of Ram Autar Sahu v. B. Bate Krishna, AIR 1936 All 479. On this view he was of the opinion that the revi sion could not be decided unless this conflict was resolved. He accordingly directed the papers.to be laid before the Hon'ble the Chief Justice to constitute a Full Bench. The revision was listed thereafter before a Divi sion Bench which too took the same view as was taken by the learned Single Judge. That is how the present revision has been listed before this Full Bench.

(3.) LEARNED counsel for opposite party No. 1, however, contended that the decision given by the execution Court was of a sum mary nature and could not as such operate as res judicata. He pointed out that the said decision was essentially one deciding a dispute between two persons claiming on the same side and could not, therefore, be treat ed to be "between the parties to the suit in which the decree was "assed, or their repre sentatives" within the meaning of S. 47. He also urged that the decision did not have the force of a decree.