SENAJI KAPURCHAND Vs. PANNAJI DEVICHAND

JUDGEMENT

(1.) This is an application under Section 115 for revision of an order passed by the First Class Subordinate Judge of Dhar-war, or rather I should say a finding on an issue, that the suit No. 46 of 1919 is not barred by res judicata by reason of the Privy Council decision in a similar suit and therefore the suit should be heard on the merits.

(2.) The facts, so far as they are necessary for the determination of this application are that there were certain dealings between three firms at Bellary in the Madras Presidency and one firm in the Dharwar District, and in connection with these transactions certain obligations were incurred which formed the subject of two suits, one in Bellary brought by the present defendants against the present plaintiff", and one in Dharwar by the plaintiff against the present defendants, the parties being same in the two suits. The Bellary suit went in appeal to the Madras High Court, and pending hearing of the appeal, the hearing of the Dharwar suit was stayed. Ultimately the Madras High Court ordered the suit to be dismissed on the ground that the contract of partnership, on which the plaintiffs in that case sued, was illegal. The decision is in Pannaji Devichand V/s. Senaji Kapurehand (1926) I.L.R. 50 Mad. 175. Against this, there was an appeal to the Privy Council and the Privy Council upheld the decision of the Madras High Court, the case being Senaji Kapurchand V/s. Pannaji Devichand After the disposal of the case by the Privy Council it was contended in the Dharwar suit that in the face of this decision the suit could not go on as the cause of action was the same as in the Bellary suit and therefore in view of the Privy Council decision the suit would not lie. The Subordinate Judge, after hearing arguments on this question, wrote a finding on this preliminary issue in which he held, for reasons into which I need not go, that the present suit was not barred by res judicata, the facts on which the plaintiff's plaint is based being distinguishable from those in the Bellary suit. The suit was accordingly ordered to proceed on the merits. Against this finding, which of course involves the further progress of the suit, a revisional application under Section 115 of the Civil Procedure Code has been presented to this Court by the defendant.

(3.) A preliminary objection is taken by the learned counsel on behalf of the plaintiff-opponent that the application will not lie. In the present case what we have is a finding on an issue, viz,, whether the suit is barred by res judicata or not, and against that an application in revision is not competent, because, first, this is not a case decided against which revision will lie, and, secondly revision of the finding on an issue of res judicata is not governed by Section 115.