MEGHRAJ GOLAB CHAND, FIRM Vs. CHANDRA KAMAL BHUIYAN

JUDGEMENT

(1.) This appeal is by the decree-holder. His difficulties are due to the fact that he did not appeal against a wrong order made by the Subordinate Judge of Jorhat. The decree was made by the Subordinate Judge of Dibrugarh, on 7 March 1934. North Lakhimpore (the area within which the cause of action arose) was transferred to Sibsagar with effect from 1 August 1934. Starting with an application by the decree-holder on 11 February 1937, there were altogether four execution cases disposed of by the Subordinate Judge at Jorhat which is the headquarters of the Sibsagar District. The last was dismissed on 31 March 1939, on the ground that the Court had no jurisdiction to deal with the matter. The present execution case was filed in the Court of the Subordinate Judge at Dibrugarh, where the decree was originally made. An objection was filed by the judgment-debtor on the ground that the application was barred by limitation. This objection was overruled by the Deputy Commissioner, but has been allowed in appeal by the Subordinate Judge.

(2.) It is not necessary to discuss the merits of the case. Mr. Sen very fairly conceded that the application is not barred by limitation. The question depends upon whether the Court at Jorhat had jurisdiction to execute the decree. The case clearly comes within the provisions of Section 37 (b), Civil P.C. As a result, the applications in the Court of Jorhat were properly filed in a Court of competent jurisdiction. They, therefore, cannot be treated as mere nullities and are sufficient to save limitation. Mr. Sen, however, supported the conclusion of the Subordinate Judge that the appellant is precluded from raising the question on the general principles of res judicata. On this point Mr. Mukherji's first contention was that res judicata can only apply to the case in which the decision was made (the fourth case) and subsequent cases. It will not affect the previous cases. On that view the present application would be within time as it was filed within 3 years of the dismissal of the third case. On that matter the position is as follows : This very objection as to jurisdiction was taken by the judgment-debtor in the second case. The decree was transfer red to Nowgong where it appears that the judgment-debtor was stationed at the time. The execution case was eventually dismissed. The objection was not pressed to a decision and was not raised in the third case. When the objection was put forward again in the fourth case, the appellant ought to have raised a plea of res judicata. He should have contended that the judgment-debtor was prevented from raising the question either on the principles of constructive res judicata or on the ground that the failure of the judgment- debtor to prosecute his objection in the second case was tantamount to its dismissal. When this plea was not raised, then on the general principles of res judicata the last decision will prevail and all the cases will be affected by it.

(3.) In the second place, Mr. Mukherji relied on the general principle that the decision of a question of law which does not decide anything regarding the rights of the parties is not res judicata. Various cases were cited in support of this general proposition. Of course, Mr. Sen had no difficulty in distinguishing some of them from the present case. But they do illustrate other applications of the same principle. The particular point in the present case is whether the decision of the Court that it has no jurisdiction to deal with the case is res judicata or not. A right decision on this point could not have any such effect. It would be nothing more than an expression of opinion by the presiding officer of a Court which had no jurisdiction to deal with the matter. The necessary foundation for raising a plea of res judicata would accordingly be absent. In his reply Mr. Mazumdar contended that the opposite proposition must be equally true. When the Court itself is denying jurisdiction, the decision cannot have any such effect. I am not prepared to accept this contention. Ex hypothesi, a Court having jurisdiction has wrongly decided a point raised by the parties and a wrong decision by a competent Court can be made the basis of a plea of res judicata. It is therefore necessary to examine the matter further. The general question arose for consideration by a Full Bench of this Court in the case in Tarini Charan V/s. Kedar Nath . The question was framed in extremely wide terms, i. e., whether an erroneous decision on a pure question of law operates as res judicata in a subsequent suit where the same question is raised. The judgment was delivered by Rankin C. J. He was not prepared to answer the question, framed as it was in such wide terms. He did, however, make some observations with regard to the law of res judicata and on the present question he said this: Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, questions of limitation, may all be questions of law. In such questions the rights of parties are not the only matter for consideration. The Court and the public have an interest. When a plea of res judicata is raised with reference to such matters, it is at least a question whether special considerations do not apply.