YADAO RAMASA TELI Vs. KESARBAI

JUDGEMENT

(1.) THE question for decision in this second appeal is whether the transfer effected by the sale deed Ex. P-2, dated l3th April 1938, executed by the defendant-appellant Yadao in favour of the plaintiff-respondent Mt. Kesarbai is a sale with a condition of repurchase or a mortgage by conditional sale.

(2.) THIS question was tried and decided by the Debt Relief Court, Darwha, on 26th January 1943, in a proceeding before it started on the application of the defendant appellant Yadao for relief under the Central Provinces and Berar Relief of Indebtedness Act, 1939. That Court held that it was a sale with a condition of repurchase and that decision was upheld in revision under that Act.

(3.) THE learned Counsel for the appellant said that he relied on Upendra Nath v. Lall A.I.R. (27) 1940 P.C. 222, in support of his contention that the decision of the Debt Relief Court does not operate as res judicata. In that case their Lordships of the Privy Council observed: It must, however, be borne in mind that the construction of the award was not an issue in the proceedings; it was merely a ground upon which the Court based their decision upon the question which was the issue between the patties, viz., whether the Benaras Court had jurisdiction to order that the award be filed and be made an order of Court.... The res judicata here was the lack of jurisdiction of the Subordinate Judge of Benaras and of the High Court of Allahabad on appeal therefrom-not the reason for that decision. A Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction; such reasons are not decisions, and are certainly not decisions by a Court of competent jurisdiction. It would indeed be strange if on a dispute as to the jurisdiction of a Court to try an issue, that Court by its reasons for holding that it had no jurisdiction, could, upon the principle of res judicata, decide and bind the parties upon the very issue which it was incompetent to try. There was no dispute in the proceedings before the Debt Relief Court, Darwha, as to its jurisdiction to entertain the application of the debtor. It has also jurisdiction to try the question whether Ex. P-2 was a sale deed or a mortgage deed as the debtor in those proceedings had included the transaction in his debts and it was necessary to decide whether it was a debt or not. So the Privy Council decision mentioned above does not apply to the present case.