JAGAT KISHORE PD NARAIN SINGH Vs. PARMESHWAR SINGH

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for recovery of Rs. 300 and interest, by way of damages, in respect of realisation by the defendant of the decretal dues twice over in two rent suits. These rent suits were decreed in 1935. According to the plaintiff's case and the findings of the Courts below, the sum of Rs. 300 was paid out of Court in the year 1936 under a promise of certification, but in fact the payment was never certified, and execution for the full amount of the decrees was taken out in the year 1937. On 5.4.1937, the plaintiff made an application under Order 21, Rule 2, Civil P. C., for certification of the payment, but this-application was dismissed as barred by limitation under Article 174, Limitation Act, and also as it was held that payment had not been proved. There was an appeal, but the appeal also was dismissed. Subsequently in the execution proceedings the judgment-debtor had to pay over again, paying by instalments from 16-1-1940, onwards. The plaintiff waited for full three years before doing anything about it, and on 19.1-1943, filed the present suit. There were, however, a few days' holidays prior to the 19th of January, and it is conceded that the suit was within time if limitation runs from 16-1-1940. The suit has been decreed for Rs. 300-and interest, cot at the rate claimed, but at 6 per cent. per annum from 16 1-1940.

(2.) Three points have been raised in appeal, first, that the suit was barred by res judicata owing to the dismissal of the application under Order 21, Rule 2, second, that the suit was barred by limitation, and third, that interest should not have been allowed as there was no contract for payment of interest or damages.

(3.) I shall take these points in turn. With regard to the first, reliance is placed on a number of cases of which it will suffice to cite Peary Mohan Mukherjee v. Ambica Churn Bandopadhya, 24 Cal. 900, wherein it was held that, though the previous suit failed for lack of notice, there was res judicata because the question of the merits, whether necessary or not, had also been decided and the matter was directly and substantially in issue in the previous litigation.