SHANKAR VISHNU GOKHALE Vs. RAGHUNATH HARI DHARAP

JUDGEMENT

(1.) In the suit of 1899 there was no doubt an issue framed, raising the question whether the present respondent Hari, who was plaintiff therein, could sue alone to recover the debt in dispute from the defendant in that suit. And the Court trying it found that he could not sue alone and that Damodar, father of respondents 2 to 5, who was defendant 2 in that suit, had the right to be co-plaintiff therein. That finding was recorded upon the ground that the debt sued for was a debt due to a partnership of which Hari and Damodar were co-partners. That finding, however, was arrived at only for the purpose of the defendant sued in that litigation. But the Court did not, indeed was not, called upon to decide finally what the respective interests of Hari and Damodar inter se were as to the amount recovered from the debtor of the partnership and whether either Hari or Damodar was entitled as between themselves to the whole or any portion of the decretal debt. In the second suit, which was brought in 1900 for partition by Damodar against Hari, the question left undecided in the previous suit was raised in respect of the same partnership and it was found that Damodar was not entitled to any share in the partnership which formed part of the properties alleged by Damodar to be the joint properties of himself and Hari, No doubt, the ground on which the adjudication in the second suit went was that Damodar was not a co-partner of Hari because he was not a co-parcener. This finding must be regarded as the final and decisive finding governing the jural relations of the parties for two reasons : first, it settled the interest between Damodar and Hari, which the judgment in the suit of 1899 had left undecided, and secondly, even assuming that that judgment had settled what those interests were, Damodar having failed to plead that settlement as resjudicata in the second suit, it is the adjudication in the second suit that must prevail as finally deciding the issue of title as between the parties. From whichever point of view we look at the question, Damodar was not entitled to recover any share in the money paid by the defendant in the suit of 1899 in execution of the decree therein. And having recovered it under compulsion of law while the decree in the second suit against him had come into existence, he is liable to restore the money, recovered by him knowing that he had no right to it.

(2.) The decree must therefore be confirmed with costs. Batchelor, J.

(3.) I am of the same opinion. It is to be observed that the only point which was decided in Suit No. 694 of 1899 was that Damodar was entitled to be brought on the record as a plaintiff. It may be that, for the purpose of deciding that point, the question was entered upon and considered whether Damodar had any interest in the partnership. But the only decision as to what interest Damodar had in the partnership is the decision contained in the decree in the later Suit No. 71 which is a decision that Damodar has no such rights at all. It may be pointed out that this later decision was subsisting, had in fact been subsisting for nearly two years, when this application for execution was made. In the view, therefore, which I take of these two decrees it would not appear that there is any real inconsistency between them, because the later decree and that alone decided the question now in issue as to what interest, if any, Damodar had in the partnership. But even supposing that that decision could only be arrived at by overriding what was decided in Suit No. 694,I should still be of opinion that the later decision must prevail to govern the present rights of the parties. Upon this point the appellant relied upon the case of Marriot v. Hampton (1797) 7 T.R. 269 which is authority for the position that money recovered under compulsion of legal process cannot ordinarily be recovered back. This case and the extent of its authority in India were noticed by the Privy Council in Sharma Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (1865) 10 M. I. A. 203, 211. Their Lordships there say "There is no doubt that, according to the law of this country-and their Lordships see no reason for holding that it is otherwise in India-money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force ; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded...."