IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 AS.No. 392 of 1998(C) -------------------- OS.104/1995 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S): ---------------------- UNION BANK OF INDIA, PALAYALAM ROAD BRANCH, CALICUT REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI. ASP.KURUP SMT.SANDHYA DEVI RESPONDENT(S): ----------------------- 1. SMT. K. MALUKUTTY AMMA, W/O. LATE NARAYANAN NAIR, AGED 58 YEARS, KARAPPANKANDIYIL HOUSE, KANNANKARA AMSON AND DESOM, KOZHIKODE TALUK. 2. SMT. K. BALAMANI, D/O. LATE NARAYANAN NAIR, AGED 34 YEARS, - DO - 3. SMT. K. BHARGHAVI, D/O. LATE NARAYANAN NAIR, AGED 30 YEARS, - DO - 4. SRI. K. VIJAYAKRISHNAN, S/O. LATE NARAYANAN NAIR, AGED 36 YEARS, - DO - BY ADV. SRI.P.SANJAY FOR R. 1 - 3 SRI.A.PARVATHI MENON FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT DISMISSED FOR DEFAULT. SD/- (M.L. JOSEPH FRANCIS) JUDGE. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 392 of 1998 * * * * * * * * * * * * * * * * * * Dated: 12-3-2010 JUDGMENT The plaintiff in O.S. No. 104 of 1995 on the file of the Sub Court, Kozhikode is the appellant in this Appeal. 2. The plaintiff is a nationalised bank. The aforesaid suit was one for realisation of a sum of Rs. 29548.05 with future interest at the rate of 14% per annum being an agricultural loan availed of by the defendants from the plaintiff bank on 25-4-1988 after executing Ext.A2 demand promissory note and Ext.A3 hypothecation agreement with regard to the standing crops. The defendants had also created an equitable mortgage with the intention to do so by depositing their title deeds as evidenced by Ext.A5 memorandum executed in favour of the plaintiff bank on 25- 4-1988. The defendants are liable to re-pay the loan amount with interest subject to a minimum of 14%. The defendants A.S. No. 392 of 1998 C -:2:- were irregular in re-paying the loan. In spite of several notices, balance amount due was not paid. Hence the plaintiff issued Ext.A6 lawyer notice dated 22-12-1989 for which the defendants caused Ext.A8 reply notice raising untenable contentions. They had also filed a suit before the Munsiff's Court as O.S. No. 949 of 1992 and obtained a decree for injunction against realisation of the amounts through revenue recovery proceedings. The contention raised in the reply notice that the present notice is barred by res judicata is unsustainable. The plaintiff, may, therefore, be granted a decree for the amount of Rs. 29548.05 with future interest at the rate of 14% paer annum. 3. suit was resisted by defendants 1 to 4 who filed a joint statement contending inter alia as follows:- The suit is not maintainable. The suit is barred by res judicate in view of the decision in O.S. 949 of 1992. It is true that these defendants had availed of the loan as alleged. The further allegation that the plaint schedule properties were A.S. No. 392 of 1998 C -:3:- mortgaged by deposit of title deeds is denied. There was no intention to mortgage the property nor was any equitable mortgage created by these defendants in favour of the plaintiff bank. The memorandum of deposit of title deeds produced is is a concocted document for the purpose of the suit. The documents produced in connection with the alleged deposit of title deeds are fabricated documents created subsequent to the decree in O.S. 949 of 1992. In that suit, these defendants had pleaded that the debt in question was time barred and cannot be recovered by resort to revenue recovery proceedings. The present plaintiff did not produce any documents. O.S. No. 949/1992 was decreed by the court finding that the debt is barred by limitation. The account furnished by the plaintiff are incorrect. The claim of the plaintiff is barred by limitation. The plaintiff is not entitled to recover any amounts from the defendant, the suit may, therefore, be dismissed. 4. The court below framed the following issues for A.S. No. 392 of 1998 C -:4:- trial:- 1 Whether the suit is barred by resjudicate in view of the decree in O.S. 949 of 1992 ? 2_ Whether there was an equitable mortgage created as alleged ? 3 Whether the statement of accounts furnished are correct ? 4) What, if any, is the amount due to the plaintiff ? 5) Reliefs and costs ? 5. On the side of the plaintiff, the present Manager was examined as P.W.1 and Exts.A1 to A15 were got marked. The first defendant was examined as DW1 and Exts. B1 and B2 certified copies of the judgment and decree in O.S. 949 of 1992 on the file of the Munsiff's Court , Kozhikode were got marked. 6. The learned Subordinate Judge, after trial, came to the conclusion that the judgment and decree passed in O.S. 92 would operate as res judicata in the present suit since in that suit the learned Munsiff relying on the decision reported in A.S. No. 392 of 1998 C -:5:- John v. District Collector - 1989 (2) KLT 831 had found that the revenue recovery proceedings were barred by limitation. Under issue No.2 the court below, however, found that an equitable mortgage was created by the defendants in favour of the plaintiff as alleged by the plaintiff. In the light of the finding issue No. 1 to the effect that the present suit is barred by res judicata in view of the decree in O.S. 949/1992 the court below dismissed the suit as per judgment and decree dated 4-7-1997. Hence, this appeal by the plaintiff. 7. The only point which arises for consideration in this appeal as to whether the judgment and decree passed by the court below are sustainable or not ? THE POINT: 8. I heard the learned counsel appearing for both sides. 9. The learned counsel appearing for the respondents/defendants who sought to sustain the decree appealed against by contending as follows:- A.S. No. 392 of 1998 C -:6:- O.S. 949/92 was a suit filed by the present defendants 1 to 3 against the State of Kerala and its officials including the Tahsildar as well as the plaintiff/Bank for a declaration that the defendants therein are not entitled to initiate revenue recovery proceedings and attach the properties and for an injunction restraining the defendants therein from attaching the properties. The said suit, after a contest, was decreed notwithstanding the finding that the revenue recovery proceedings were not vitiated by fraud. The said decree will clearly operate as res judicata to the present suit as per which the plaintiff bank which was restrained from realising the money by resort to revenue recovery proceedings is indirectly attempting to recover the money through court on the strength of an equitable mortgage said to have been executed by the defendant. Hence, the finding recorded by the court below does not call for any interference. 10. I am afraid that I cannot agree with the above submissions. It is true that Ext.B1 decree was passed on the A.S. No. 392 of 1998 C -:7:- footing that recovery of amount due to a nationalised bank by resort to revenue recovery proceedings could not be had beyond the period of limitation prescribed under the Limitation Act in view of the decision of the Kerala High Court in A.K. Nanu and Others v. State of Kerala and Others - 1987 (2) KLT 921 and John v. District Collector - 1989 (2) KLT 831. However, the said decisions were subsequently overruled by a Full Bench of this Court in Kerala Fisheries Corporation v. P.S. John - 1996 (1) KLT 814. Even otherwise, in Ext.B2 judgment, there is a clear finding that the plaintiffs therein who are the defendants herein had failed to show that the revenue recovery proceedings were vitiated by fraud. If so, under Sec. 72 of the Kerala Revenue Recovery Act, 1968, O.S. 949 of 1992 was not maintainable even as per the findings recorded therein . (See Spl. Tahsildar v. Vasu - 2006 (4) KLT 557). No fraud was also alleged by the plaintiffs therein. Thus, apart from the fact that O.S. 949 of 1992 was not maintainable even on the findings recorded by the court in A.S. No. 392 of 1998 C -:8:- Ext.B2 judgment the basis for that decision namely John v. District Collector - 1989 (2) KLT 831 itself had been removed when that decision was overruled by the Full Court. It is relying on a decree passed by a Court which did not have the jurisdiction to entertain the suit that the defendants are pleading res judicata. It is well settled that a declaratory decree as in the case of Ext.B1 is without jurisdiction if rendered contrary to the existing law and cannot operate as res judicata. See Shakuntala Devi v. Kamla and Others - (2005) 5 SCC 390. Where the law is altered since the earlier decision, it is well settled that the earlier decision cannot operate as res judicata See Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N. B. Jeejeebhoy - (1970) 1 SCC 613. It is equally well settled that the question relating to jurisdiction of a court cannot be said to have been finally determined by an erroneous decision of the court and such decision cannot operate as res judicata in subsequent proceedings and the question of jurisdiction can be raised A.S. No. 392 of 1998 C -:9:- even during execution. (Mohd Sahib v. Muhamed Ibrahim - 2007 (2) KLT 56. It is equally well settled that a person cannot successfully put forward a plea of res judicata even without producing the pleadings in the earlier suit. - Balakrishnan v. Venugopalan - 2006 (2) KLT SN 5 . Except producing the judgment and decree in the earlier suit, the respondents/defendants did not produce any scrap of paper including the pleadings in the earlier suit in support of their contention. The findings recorded by the court below that the the judgment and decree in O.S. 949 of 1992 operate as res judicate in the present suit is , therefore, clearly erroneous and the said finding is reversed. The Court below has found that the defendants had created the equitable mortgage in favour of the plaintiff bank. If so, the suit filed within 12 years of the loan transaction was not barred by limitation and was liable to be decreed. Hence in reversal of the judgment passed by the trial court, the suit is decreed. The plaintiff/bank will be entitled to a A.S. No. 392 of 1998 C -:10:- decree for a sum of Rs. 29,548.05 with 6 % interest thereon from the date of suit till realisation and the decree will be charged on the properties covered by the equitable mortgage. Having regard to the facts and circumstances of the case, the parties shall bear their respective costs in this appeal. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ P.S. to Judge ani. A.S. No. 392 of 1998 C -:11:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. NO. 392 of 1998 * * * * * * * * * * * * * * * * * * Dated: 12-3-2010 JUDGMENT