MOHINDER KAUR Vs. PARA SINGH

JUDGEMENT

(1.) The following question of law has been referred to this Full Bench for decision :-

(2.) The present plaintiff-appellants (hereinafter referred to as the plaintiffs), along with their mother, Smt. Amar Kaur, brought a suit on July 1, 1958 for maintenance against their grandfather, Ishar Singh, with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961, by Sub-Judge Ist Class, Garhshankar. Before an appeal could be filed against that decree Ishar Singh, judgment-debtor, died. The present defendants, claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendants arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendants were the legal representatives of Ishar Singh deceased, judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this Court with the following order :-

(3.) The learned single Judge, before whom this R.S.A. came up for final hearing, felt that the inflexible and absolute rule laid down by a string of decisions of Lahore High Court and this Court that a decision under Order 22, Rule 5, Civil Procedure Code, would in no case operate as res judicata between the parties or their successors-in-interest in a subsequent suit required reconsideration in view of the newly added explanations 7 and 8 to Section 11 of the Civil Procedure Code and the decision of their Lordships of the Supreme Court in Union of India V. Nanak Singh, 1968 AIR(SC) 1370 In the said case, the learned Judges of the Supreme Court, while holding that a decision of the Court on the writ side deciding a particular issue involved therein, would operate as res judicata regarding the said point, raised subsequently in a civil suit observed as follows :-