OBLA SUBBIER Vs. RAMASWAMY KONAR

JUDGEMENT

(1.) The plaintiff sued on a mortgage and obtained a decree for sale against first defendant and his minor son second defendant. The second defendant then brought O. S. No. 50 of 1920 in the Court of the District Munsif of Madura Taluk pleading that the mortgage debt was for improper purposes and therefore not binding upon him, also that he was not properly represented in the suit and praying for a declaration that the decree was not binding upon him. The District Munsif found that the second defendant's guardian-ad-litem had never consented to act and granted the prayer that the decree was not binding. The plaintiff then applied successfully to have the suit reopened as against second defendant with a proper guardian. Both lower Courts have found on the rehearing that the debt was not binding upon second defendant inasmuch as it was only justified as being for trade, and-there was no proof that this is a trading family. The plaintiff appeals and attacks this finding mainly on the ground that in O. S. No. 50 of 1920 a direct issue was raised and determined: Is the hypothecation debt contracted by the second defendant binding on the plaintiff and the finding on that issue in the affirmative must operate as res judicata in the present suit.

(2.) Therefore the point for dstermination is whether this matter was directly and and substantially in issue in the former suit and was it heard and finally decided? There can be no doubt that the matter was directly in issue, and it was finally decided against the second defendant. The decree was in his favour because of the finding on the first issue in regard to proper representation, so there was no necessity to appeal against the decree. Probably if he liked he could have appealed against the finding, as an appeal from the decree - Venkateswarlu V/s. Lingayya A. I. R. 1924 Mad. 689 and Raghava Aiyangar V/s. Irula Thevan A. I. R. 1926 Mad. 974 But whether he elected to appeal or to refrain from appealing has no bearing upon the question of res judicata - Yusuf Sahib V/s. Durgi [1907] 30 Mad. 447 and Muthaya Shetti V/s. Kanthappa Shetti [1918] 7 M. L. W. 482 It was held in Parbati Debi v. Mathura Nath Banerjee [1913] 40 Cal. 29 that if the party were debarred from appealing there could be no res judicata; but the effect of the Madras rulings cited above would be that he is not debarred, and if he were, it would not affect the matter. Once it is found that the right to appeal is not a determining factor in the question, it is difficult to see how it can matter whether the res judicata is or is not embodied in a decree. But in Thakur Magundeo V/s. Thakur Mahadeo Singh [1891] 18 Cal. 647 the Privy Council ruling in Run Bahadur Singh V/s. Lucho Koer [1885] 11 Cal. 301 was quoted as authority for the proposition that if the decree is in spite of the finding, there can be no res judicata. In that case only one point was in issue, whether a family was separate or joint, and the High Court found on the facts that it was joint but decreed on the law, because a previous case operated as res judicata, that it was separate. The Judicial Committee merely remarks that the respondent need be under no apprehension that the finding on facts would stand in her way, because the actual decree is in a contrary sense. Thakur Magundeo V/s. Thakur Mahadeo Singh [1891] 18 Cal. 647 is one of those cases where two points had to be determined, whether the tenant had occupancy right, and whether he had received notice to quit. The decree dismissing the suit for want of proper notice to quit was no doubt in spite of the finding that the tenant had no occupancy right, but the, circumstances are entirely different, from those in Run Bahadur Singh V/s. Lucho Koer [1885] 11 Cal. 301 This is pointed out in Ramakrishna Naidu V/s. Krishnaswami Naidu [1919] 9 L. W. 180.

(3.) Therefore the question of finality is unaffected by considerations whether an appeal lay from the decision, or whether it was embodied in the decree. If the decision is on a matter which was substantially in issue between the parties it will be res judicata although there was no appeal, or could have been no appeal, and although the decree itself was based on grounds independent or in spite of the particular decision.