MADANA GOPALASWAMI VARU OF BALLIPADU Vs. VANGA PADMARAJU

JUDGEMENT

(1.) This is an appeal from the judgment of the Subordinate Judge, Eluru, who, on appeal, upheld the decision of the District Munsif, Tanuku, dismissing the plaintiffs application for a final decree in a suit for recovery of a sum of money by sale of a certain parcel of land which had been offered as security to the plaintiff by the defendants. The property which was offered as security for the debt had been admittedly held by the defendants-respondents as washer man service inam. It is also common ground that this land being a service inam, falls within the mischief of Section 5 of the Madras Hereditary Village-offices Act, III of 1895 which prohibits its alienation. This prohibition is founded on public policy which, aims at preventing dissociation from the office if the emoluments attached thereto, for such dissociation would impair the efficiency of the service to be rendered and thereby injuriously affect the interest of the sections of the community intended to be benefited by the service. In spite of the statutory prohibition against alienation of the land in question, an ex parte preliminary decree for its sale was passed in favour of the plaintiff by the trial Court. No attempt was made by the judgment-debtors-defendants to get this decree reversed or modified in appeal. But when the degree holder-plaintiff applied for a final decree, the objection was raised that the property in question was a service inam falling within the ambit of Section 5 of Act III of 1895 and that therefore no decree for its sale could be passed. This objection found favour with the Court of first instance which held in spite of the preliminary decree, it was entitled to decline to pass a final decree in view of the inalien ability of the property. On appeal by the plaintiff, the Subordinate Judge, Eluru affirmed the decision of the, first Court. The aggrieved plaintiff has therefore come to this Court in further appeal.

(2.) The main contention advanced on behalf of the appellant is that the respondents-judgment-debtors are precluded by the rule of res judicata from raising the plea of inalienability of the property, in final decree proceedings. To this, the respondents learned counsel answers: (i) that the statutory provision against alienation embodied in Section 5 of Act III of 1895 wholly deprives the Court of jurisdiction to pass a decree for sale of the property and that therefore the rule of res judicata cannot successfully be invoked; (ii) that the preliminary decree was obtained by the plaintiff ex parte and such a decree cannot operate as res judicata; (iii) that the preliminary decree not being an executable decree, cannot form the basis of res judicata. The other limb of the argument advanced on behalf of the respondents is that in a previous premature and unsuccessful Execution Petition (E. P. 73/55) preferred by the present appellant, the question of res judicata was not raised by him to combat the objection to executability effectively set up by the respondents herein and that consequently he cannot now be permitted to put it forward.

(3.) The contention that the bar of Section 5 of Act III of 1895 can be successfully raised even after a preliminary decree for sale of the property does not appear to be sustainable. Much Of the argument on behalf of the respondents is built on the circumstances that the statutory prohibition in Section 5 of Act III of 1895 is founded on sound public policy. This argument however overlooks the fact that the doctrine of res judicata is equally based on valid considerations of public policy. Besides, there is nothing in section II of the Code of Civil Procedure or in the general law bearing on res judicata to exclude its operation in a case like the present. It is perhaps unnecessary to deal with this aspect on first principles because the point appears to be authoritatively concluded by the derision of a Full Bench of this Court reported in Venkataseshayya v. Virayya, (1957) 2 Andh WR 137: (AIR 1958 Andh Pra I) (FB). But this decision, which is strongly relied on by the appellant, is sought to be distinguished by the respondents counsel on the ground that it did not deal with the case of an application for final decree, but with a subsequent suit filed by the village service inam holder to restrain the purchaser at an execution sale from interfering with his right and possession of the property. I am unable to see how this circumstance can make any difference in principle. The Full Bench clearly held that when a decree had been passed for sale of a village service inam land without any objection based on Section 5 of Act III of 189,5 having been raised in this suit, that decree barred the judgment-debt or from assailing its validity in a subsequent suit or proceeding on the ground of the inalienability of the land. In other words, the rule of constructive res judicata enacted in Explanation IV to section 11 C. P. C. stood in his way in seeking to reopen the previous decision or to obtain a relief which, if granted, would nullify that decision.