KANAMATHAREDDI SEETHAMMA Vs. KANAMATHAREDDI KOTAREDDI

JUDGEMENT

(1.) On 19 August, 1935, the decree-holder in O.S. No. 527 of 1930 attached the six items of property with which we are now concerned and a few other items in E.P. No. 383 of 1935. When the property was posted for sale on 13 July, 1936, the mother of the judgment-debtor intervened end claimed in her application, E.A. No. 1250 of 1936 (Ex. P-3), that she had been given a maintenance charge over these six items in a suit brought by her for that purpose (O.S. No. 349 of 1932) on the file of the District Munsiff's Court of Ellore). Four days before E. A. No. 1250 of 1936 was filed, the decree-holder and another filed a suit representing the general body of creditors for a declaration that the charge decree obtained by the mother of the judgment-debtor was collusive and not binding on the creditors and that the property already purchased in execution of the decree in O.S. No. 527 of 1930, as well as the items under attachment, were not therefore liable for her maintenance. On 13 July, 1936, when E. A. No. 1250 of 1936 came on for hearing, the decree-holder informed the Court that he had filed O.S. No. 231 of 1936 on 9 July, 1936. The Court thereupon passed the order, Notify the suit presented and the charge claimed by the petitioner. The property was thereupon brought to sale and items 1 to 5 were purchased by the first plaintiff in the suit out of which this second appeal arises and item 6 by the second plaintiff. O.S. No. 231 of 1936 was dismissed on 15 December, 1939. The appeal of the plaintiffs was allowed, the Subordinate Judge holding that the decree obtained by the mother of the judgment-debtor was vitiated by fraud and collusion. In second appeal to this Court, however, the decree of the District Munsiff was restored as far as it related to items 1 to 6, the rights to which are now in question. When the mother of the judgment-debtor, who is the appellant in this second appeal, filed E.P. No. 146 of 1943, to enforce her maintenance decree, the application was resisted; and the purchasers of the properties filed the present suit, O.S. No. 91 of 1943, for a declaration that since the appellant had not filed a suit under Order 21, Rule 63, Civil Procedure Code, within a year of the adverse claim order, they had obtained, as auction purchasers, an absolute right to the property. They also prayed for an injunction restraining her from executing her decree in O.S. No. 349 of 1932. The appellant's defence to that suit was. that her right to execute the decree was raised in O.S. No. 231 of 1936, which had ended in her favour and that it was no longer open to the respondents to contend afresh that she was not entitled to execute her decree. The Courts below held that the respondents were not barred by res judicata from putting forward their claim again. In second appeal to this Court Patanjali Sastri and Bell, JJ., were of opinion that Section 11, Explanation IV of the Civil P. C. did bar the respondents from again questioning the mother's right to execute her decree, notwithstanding the fact that she had not filed a suit to set aside the adverse claim order. As however the learned Judges were confronted with the decision in Akkammal V/s. Komarasami a case almost identical with the present case, in which it was held that the only way of getting rid of an adverse claim order was to file a suit under Order 21, Rule 63, Civil Procedure Code, the principle of res judicata would not apply, the learned Judges referred the question " Was Akkammal V/s. Komarasami correctly decided ?" to a Full Bench. As neither of the learned Judges is now sitting in this-Court, the appeal as well as the question referred by the learned Judges have been posted before us for decision and disposal.

(2.) It has first been argued for the respondents that even apart from the mandatory provision of Order 21, Rule 63, Civil Procedure Code, the matter would not be res judicata as a result of the decision in O.S. No. 231 of 1936; because the parties were litigating under different titles in the two suits. O.S. No. 231 of 1936 was filed as a representative suit by the creditors; whereas the present suit was filed by auction-purchasers who did not claim as creditors or through a creditor but through the judgment-debtor, whose interest, they had purchased. The fact that one of them was also a decree-holder was immaterial. It was held in S. A. No. 1276 of 1941 by Abdur Rahman, J., that the suit was not maintainable as a representative suit; but he treated it as one by the two respondents with regard to their own rights. It is true that in that suit they figured as creditors and here as representatives of the judgment-debtor; but in both the suits there was a triangular fight between the decree-holder, the judgment-debtor, and the appellant. The appellant was contending on the one hand that she was entitled to this charge and was claiming that charge against the interests of both the judgment-debtor and the decree-holder. There was therefore a conflict between the judgment-debtor and the appellant in the former suit, and in the latter between the appellant and the respondents, who claimed through the judgment-debtor. In Akkammal V/s. Komarasami , under similar circumstances, it was held the bar of res judicata would undoubtedly have applied had it not been for the mandatory requirements of Order 21, Rule 63, Civil Procedure Code. We respectfully agree.

(3.) The learned referring Judges were of opinion that the provisions of Section 11, Civil Procedure Code, were as mandatory as the provisions of Order 21, Rule 63, Civil Procedure Code; and it has therefore been argued before us that even though the adverse order in the claim petition became final as a result of the appellant's failure to institute a suit under Order 21, Rule 63, Civil Procedure Code, the finality of those proceedings could and should have been put forward by the respondents in their suit and that since they had not done so, the decision in O.S. No. 231 of 1936 was final and must be regarded as having, by implication, decided against the plea of the respondents based on the finality of the claim proceedings. It has however to be borne in mind in this connection that O.S. No. 231 of 1936 was filed before the order on the claim petition had been passed, and it remained pending during the whole period of one year from the date of the adverse order, i.e., 13 July, 1936. The plea that the adverse claim order had become final could not therefore have been put forward in the plaint in O.S. No. 231 of 1936 though there can be no doubt that the plaintiffs could have put it forward at a later stage. The question is whether they were bound to do so, under penalty of being barred in any subsequent suit from raising that point. Upon the expiry of the period of one year from the adverse claim order, the respondents obtained an indefeasible right to the property. They had purchased it subject to the result of any suit that the appellant might have brought within the period of one year; but subject to the result of that suit, their title to the property could not be questioned by the appellant. Upon the expiry of that term, therefore, they had acquired a right in that property in much the same way as a person would acquire a title to immoveable property if he remained in adverse possession for a period of twelve years. They had therefore obtained a fresh cause of action.