NANDAMANI Vs. HARI KRISHNA BHIMA DEO

JUDGEMENT

(1.) This is an application by the defendant in the suit for a certificate that this is a fit case for appeal to His Majesty in Council under Section 109(c), Civil P.C. The plaintiff opposite party has brought a suit in the Court of the Subordinate Judge of Berhampur claiming possession of a large estate and mesne profits. The plaintiff's case was that he was entitled to the estate by inheritance and that the defendant who was in possession was illegitimate and had no claim whatsoever to the property. The defendant inter alia pleaded that the plain, tiff was illegitimate and that the question of the defendant's legitimacy had been decided once and for all by their Lordships of the Privy Council in an earlier suit. Accordingly, it was said that the question of the legitimacy of the defendant could not again be agitated as the matter was barred by the principle of res judicata. To meet this defence of res judicata, the plain, tiff has alleged that the decree obtained by the defendant is tainted by fraud and collusion and that as he was not a party to that litigation, it is not binding upon him. Accordingly he contends that the matter is entirely at large and that as between the parties the legitimacy of the defendant is a matter to be decided in this particular suit.

(2.) In due course fifteen issues were framed and an application was made on behalf of the defendant under Order 14, Rule 2 and Order 15, Rule 3, Civil P.C., praying that the Court should hear and dispose of issues 3 to 7 and the second part of issues 8 and 9 as preliminary issues and further that the Court should try issue 1 on facts and dispose of it before going into the other issues of the case. The learned Subordinate Judge heard the parties and on 22 September, 1938, delivered an elaborate judgment in which he held that it was not a case in which he ought to direct that these issues be disposed of before going into the merits of the whole case. Against that order the defendant filed a revision application in this Court which was heard by this Bench at Cuttack. This Bench declined to interfere with the order of the Subordinate Judge and summarily dismissed the petition. As the application was dismissed summarily, no judgment was delivered, but we were of opinion then, and still are, that no case had been made out for interference in revision. The defendant has now preferred the present application praying that this Court should certify that the case is a fit one for appeal to his Majesty in Council.

(3.) It must be remembered that the application which was made to this Court was an application in revision and the applicant was bound to show that the learned Subordinate Judge had either exercised jurisdiction not vested in him or declined to exercise jurisdiction vested in him or had acted illegally or with material irregularity in the exercise of his jurisdiction. As we have stated, the learned Subordinate Judge in his order dealt at great length with the contentions raised on behalf of the present applicant. There can be no question that the learned Subordinate Judge had jurisdiction to deal with the application and that he did deal with it on the merits and we fail to see in what manner the learned Subordinate Judge acted illegally or with material irregularity in dealing with the (application. The whole of the argument on behalf of the applicant today has been directed to the question as to whether the learned Subordinate Judge decided this application correctly.