MAYANKUTTI Vs. KUNHAMMAD AND FOURTEEN ORS

JUDGEMENT

(1.) This case raises a question of considerable importance and interest, namely, what is the effect of a plaintiff, who obtains a decree in ejectment in Malabar directing payment of compensation, allowing that decree to become barred. The question is whether he is entitled to maintain another suit, as it is contended, upon his title, a proposition which is supported by reference to the decision of Kutti Ali v. Chindan (1900) I.L.R., 23 Mad., 629. Now the ordinary principle is that, when a man has a cause of action and brings a suit upon it, that cause of action is merged in the decree, transit in rem judicatum; and then his remedy is in execution and if he does not enforce his remedy and allows it to become barred, his rights are gone. When a lessor sues to eject a lessee he has to prove that there was in existence a lease and a determination of that lease. That is his cause of action, and if he gets a decree and allows that decree to become barred, it seems to me that, on general principles his remedy is gone. I do not, with great respect, quite understand what is meant in Kutti Ali v. Chindan (1900) I.L.R., 23 Mad., 629 by saying that he will still be allowed to sue on title. The suit on title, I take it, is a suit to eject the defendant on the ground that he was a trespasser. Even if it could be said that the effect of a decree in ejectment was to determine the tenancy and convert the tenant into a trespasser, that would not apply to the present case where the tenant has a statutory right to continue in possession after decree until he is paid for his improvements. Further, the decision in Kutti Ali v. Chindan (1900) I.L.R., 23 Mad., 629 seems difficult to reconcile with the subsequent decision of a Full Bench of five Judges in Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R., 25 Mad., 300 in which it was held, overruling some earlier cases that, where a mortgagor brings a suit for redemption and allows the decree for redemption to become barred, his rights are gone and he cannot bring a subsequent suit for redemption. I do not see any reason why the same doctrine is not applicable to the case of lessor and lessee. Lastly, as regards the Malabar tenancies, I think that the provisions of Sections 5 and 6 of the Malabar Compensation for Tenants Improvements Act, strongly support the view I have taken and show that it was the intention of the legislature that these matters should be dealt with in execution. Section 5 provides that, notwithstanding the determination of the tenancy, the tenant is entitled to remain in possession until ejectment in execution of a decree or order of Court. Section 6 deals with the form of the decree in ejectment and the determination of compensation, and the decree is to direct that. On payment by the plaintiff into Court of the amount so found due and also the mortgage money (if any), the defendant shall put the plaintiff into possession of the land with the improvements thereon. which is very like a decree for redemption. Sub-section (3) deals with compensation for subsequent improvements and revaluation, if necessary, of the improvements at the time of ejectment. Sub-section (4) provides that: Every matter arising under Section 3 shall be deemed to be a question relating to the execution of a decree within the meaning of Clause (C) of Section 244 of the Code of Civil Procedure. It seems to me a fortiori that the payment of the compensation which is assessed in the suit by the decree is still more a matter, or at least as much a matter, relating to execution and is intended to be dealt with as such. As I understand the scheme of the Act, it is that it leaves the decree passed under the Act for ejectment on payment of compensation to be governed by the law of limitation with regard to the execution of decrees, and that it was not intended to interfere with the general principle, that a man who sues on his cause of action and obtains a decree and allows that decree to become barred has no further remedy. With great respect, I am not prepared to follow the decision in Kutti Ali v. Chindan (1900) I.L.R., 23 Mad., 629 in this case. The second appeal is dismissed with costs. Sadasiva Ayyar, J.

(2.) When a plaintiff has obtained in one suit based on some legal title, a decree for the reliefs which he was entitled to as against a defendant and has allowed that decree to become barred, he cannot, in my opinion, be allowed to bring another suit for obtaining the very same relief against the very same defendant, though on a different basis, if the latter ground of claim is founded on a right or title which existed and could have been relied on as a basis of relief when the first suit was brought. If he had failed in the first suit on the basis on which he had brought it, he might be entitled to claim the same relief in a second suit on another basis, if this latter basis could be treated as affording a different cause of action.

(3.) In Chowakkuran Keloth v. Karuvalote Parkum (1916) 29 I.C., 559 the provisions of Section 6 of the Malabar Compensation for Tenants Improvements Act and the decision in Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R., 25 Mad., 300 do not seem to have been considered and brought to the attention of the Court. I do not therefore, with great respect feel bound to follow the decision in Chowakkuran Keloth v. Karuvalote Parkum (1916) 29 I.C., 559.