MT SUMITRA KUER Vs. BHAGWAT NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by the defendant arising out of an action by the plaintiff for possession of property which he contends was sold contrary to the provisions of Section 12-A of Act 6 of 1876 which is generally known as the Encumbered, Estates Act. I need not refer to the provisions of that Section as the point which is raised in this appeal does not necessarily arise by reason of the construction of that Section, and all that is necessary to state is that in Thakur Khitanarain Sahi v. Surju Seth A.I.R (1931) . Pat. 364 this Court has held that the sales in execution come within the provisions contained in the Section to which I have referred. An argument was raised by Mr. Sarjoo Prasad under Section 177, Chota Nagpur Tenancy Act, but he frankly conceded that having regard to the correct interpretation of that Section it has no application to this case. Another point that appears to have been raised was that the property which was sold according to the defendant was not the interest of the plaintiff but some other interest. All that need be said with regard to that matter is that when the property was released from the Court of Wards it was released to the plaintiff among other persons and therefore the plaintiff was a holder within the meaning of the Encumbered Estates Act.

(2.) The substantial question that was argued was whether the sale of which the plaintiff complained had resulted in a proceeding under Section 47, Civil P.C., and that decision therein is res judicata as regards the point in dispute in this case. Their Lordships of the Judicial Committee of the Privy Council in Ram Kirpal V/s. Mt. Rup Kuari (1884) 6 All. 269 decided that, the principle of res judicata applied to execution proceedings. In Mahadeo Prasad Bhagat V/s. Bhagawat Narain Singh A.I.R (1938) Pat. 427, in a judgment of this Court to which I was a party, it was held that the question having been raised in execution, although not decided the matter became res judicata. Now, applying the principle of the decision of their Lordships of the Judicial Committee of the Privy Council, the question would arise whether in the general rule of res judicata in contra-distinction to the rule laid down in Section 11, Civil P.C., the principle of what is usually described as constructive res judicata applies.

(3.) But it is unnecessary, in my judgment to decide those questions for this very ample reason. In the grounds of appeal the appellant raised the question of res judicata but with regard to the question to which I have referred and which was said to arise under Section 177, Chota Nagpur Tenancy Act. Nowhere in the record of this case, either in the trial Court or the Appellate Court or in this Court, was the question of res judicata mooted as regards the execution proceedings to which I have referred. What was decided under Section 47 it is impossible to say. Mr. Sarjoo Prasad contends that it is unnecessary to have the proceedings before the Court or to decide any question of fact with regard to this matter because the application of the principle arises from the fact that the execution actually took place when the property was actually sold. That is an argument with which, I am afraid, I cannot agree. It may well be (I do not say it is the fact) that the Judge in the Section 47 proceedings either refused to decide the point or might have decided the point in favour of the plaintiff for all we know. It is sufficient to say that we are entirely ignorant of the judgment under that Section. It is impossible to contend that a Court can decide whether a matter is res judicata without having the earlier judgment in the case or (as in a second appeal) without having some decision as regards that matter by the last Court.