RAM SEWAK Vs. BAHAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that a certain property belongs to the plaintiff and does not belong to Raghubir and is not attachable and saleable in execution of the decree of Banal and others against Raghubir. There was a suggestion in the trial Court that a previous decree obtained by the plaintiff against Raghubir was a collusive decree, but no issue was framed on the point, and although the defendants lost in the first Court, they did not raise that question again in the grounds of appeal to the lower appellate Court. The point must be taken to have been abandoned. On the question of fact the finding is in favour of the respondent that the deed of gift executed in favour of the plaintiff's father was not a genuine transaction, but was a fictitious document executed with some ulterior motive. It follows therefore that the plaintiff is not entitled to base his claim on the deed of gift.

(2.) The only question that remains is the question of res judicata. It appears that on a previous occasion one Sitaram had attached this property in the hands of his judgment-debtor Raghubir in execution of his decree against him. The present plaintiff, Ram Sewak, brought a suit against Sitaram and Raghubir for a declaration that he was the owner of the property, that Raghubir had no interest in it at all and that accordingly it was not saleable in execution of Sitaram's decree. Raghubir did not contest the suit, but Sitaram did. The suit was decreed, and it was held that the plaintiff was the full owner. This happened in July 1927. Subsequently in 1929, another judgment-creditor of Raghubir, namely, Bahal, executed his own simple money decree against Raghubir and got this property attached a second time and put it up for sale. The property was purchased at auction by the contesting defendant, Nand Keshore. Before however the sale could be confirmed, the present suit was instituted. We are informed that the confirmation of the sale has been postponed awaiting the result of this litigation. It seems to us that the suit brought by Ram Sewak against Sitaram and Raghubir was for a declaration of title in respect of this very property. Raghubir was not a mere pro forma defendant but a principal party thereto, and the relief claimed was both against him and Sitaram. The question was one of title as to whether the property belonged to Raghubir or to Ram Sewak, and the finding of the Court is binding on Raghubir and all the subsequent representatives. It is not open to any representative of Raghubir to go behind that decree, unless fraud and collusion is proved.

(3.) The position of Bahal was that of, an attaching creditor, but he attached the property subsequent to the decree passed in the earlier suit. He must be deemed to be the representative of Raghubir so far as Ram Sewak is concerned. He is bound by the decree in the same way as Raghubir. It will be intolerable for Ram Sewak if all simple money creditors of Raghubir were to call upon him to prove his title over and over again. We think that the principle of res judicata certainly applies to this case, and the previous findingbinds Bahal. The counsel for the respondent relies strongly on Rukeya Banu V/s. Najira Banu 1928 Cal. 130. In that case a suit had been brought by the judgment-creditor against his judgment- debtor and a third party claimant and the suit was dismissed. The judgment- debtor could not have been anxious to let the suit be decreed so that his own property be sold in execution of the plaintiff's decree against him. The dispute therefore was between a representative of the judgment-debtor on the one hand as plaintiff, and the judgment-debtor and a third party on the other. It was in these circumstances that it was held by the Calcutta High Court that the decision that the property did not belong to the judgment-debtor but belonged to the third party was not res judicata. In that case the two parties were arrayed on the same side as co-defendants, and it was no real concern of the defendant to see that the claim was decreed against him. The facts of that case are therefore clearly distinguishable from this particular case.