NIKUNJA BEHARI DAS Vs. JATINDRA NATH KAR

JUDGEMENT

(1.) The only question in this case is whether the suit instituted by the opposite party Jatindra Nath Kar in the Court of the 2nd Subordinate Judge, 24 Parganas, on 6-1-1954, in which he had asked for re-opening of a preliminary and final decree passed in Title Suit No. 22 of 1941 of the same court and lor the passing of a new decree and consequential reliefs, is barred by the principle of res judicata. The previous title suit was instituted by opposite parties Nos. 2 and 3 against the present plaintiff Jatindra Nath Kar, his wife Prativamoyee Kar and certain other persons. Prativamoyee appeared in that suit and filed a written statement. In the plaint in that suit a definite averment was made that the loan in respect of which the mortgage was taken was a commercial loan. In her written statement, Prativamoyee pleaded that the loan was not a commercial loan, that she was entitled to the benefits of the Bengal Money Lenders Act and that instalments should be granted. Jatindra Nath Kar, though served with notice of the suit, did not appear and did not file any written statement. At the final hearing of the suit, Prativamoyee also did not appear and an ex parte order was made in the following terms. Claim proved. Ordered that the suit be decreed in preliminary form with costs and interests at 8 p. c. p. a. simple. Decretal amount shall be payable within one month from this date. In default, the mortgaged property will be sold for the satisfaction of the decretal amount."

(2.) The property was put to sale and purchased by the decree-holders. The present petitioner has become entitled to the property by his purchase from persons who had purchased it from the decree-holders. In the present suit, he has raised the plea that the suit is barred by the principle of res judicata. An issue was first framed whether the suit was maintainable and thereafter certain additional issues were framed and raised among others the question whether the suit was barred by tne principle of res judicata. Later on, these additional issues were treated as part of issue No. 1, wnether the suit was maintainable. The learned Subordinate Judge on the authority of this Court's decision in 'Sailabala Dassi v. Harish Chandra De', 46 Cal. W. N. 875 (A), rejected the first contention raised on behalf of the petitioner, namely, that the previous title suit having been brought & disposed of after the Bengal Money Lenders Act came into operation, any relief under the Bengal Money Lenders Act could no longer be granted. He further held that as it had been found in a previous litigation between the parties that Prativamoyee was the be-namidar of Jatindra Nath Kar, "Prativa Kar having had no interest in the property at all was not a necessary party" and "hence, it cannot be argued that the present suit would be barred by the law of res judicata as the plaintiff's wife had appeared and filed written statement in the mortgage suit an denied the defendants' allegation that the loans were commercial loans," He also rejected the contention that in any case the ex parte decision in the previous suit would operate as res judicata against Jatindra Nath Kar who was a party thereto though he had chosen not to appear. On the conclusions, he held that there was no bar in law to the maintainability of the suit.

(3.) The objection that no relief under the Bengal Money Lenders Act could be granted in view of the fact that the decree in the previous suit, which had been brought and disposed of after the Bengal Money Lenders Act came into force, did not grant any such relief, was not pursued before us.