THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.R.P.No.4443 of 2006 ORDER: The petitioner herein is defendant No.1, who files this revision under Article 227 of the Constitution of India, assailing the order in O.S.No.11 of 2000 dated 4-7-2006 on the file of the Principal Junior Civil Judge, Kandukur rejecting an objection raised by them to hold that the present suit as has been filed and framed is not maintainable and barred under the principles of res judicata in view of the earlier judgment and decree in O.S.No.10 of 1988 which is marked as Ex.B.3. Heard Sri M.Ravindranath Reddy, learned counsel for petitioner and Sri B.Narasimha Sarma, learned counsel for respondents. The plaintiff/first respondent herein i.e., Income Tax Officer, filed a suit for declaration that the agreement of sale deed dated 11-12-1981 and consequential sale deed dated 6-3-1982 as null and void. The said suit has been contested by the petitioner on various grounds including as to the maintainability. Accordingly, the issues have been framed pertaining to maintainability and also on whether the decision in O.S.No.10 of 1988 dated 10-9-1999 of the Senior Civil Judge’s Court, Kandukur operates as res judicata, apart from other issues pertaining to limitation etc., on merits. The case of the petitioner was to the effect that having regard to the earlier suit filed in O.S.No.10 of 1988, the present suit is squarely barred. The Court below after taking into consideration the respective submissions and on the pleas and objections held that the issues which are covered in the present suit are not decided finally nor there is any adjudication and the department has to file a separate suit and hence, the suit now filed is maintainable, therefore, does not constitute res judicata. Hence, the revision. Having heard the counsel and on perusal of the material in detail from both sides, the point which arises for consideration is as to the whether in the facts ad circumstances, the present suit is barred under the principles of res judicata, in view of the earlier proceedings between the parties. Before taking up the said question, it is needless to reiterate the wider spectrum as provided under Section 11 of Civil Procedure Code, where a bar is created in respect of subsequent proceedings and it has been held that to invoke such a bar, necessarily the parties in the present suit should be parties to the earlier suit and there should be a decision and final adjudication on the question in issue apart from other incidental or ancillary questions, which might arise. Keeping in view the said provision and the well laid principles it now necessitated at the first instance to consider the nature of suit and decision given therein on the earlier round. The suit O.S.No.10 of 1988 is filed by the petitioner herein for declaration of the right, title in respect of the suit schedule property and that the proclamation of the sale dated 9-2-1988 in pursuance of attachment as illegal and void and for permanent injunction restraining the Income Tax Authorities from bringing the property to sale on 14-3-1988 in pursuance of the notice in I.T.C.P.No.16 or any subsequent date and for costs. The averments in the plaint as it ran, mainly centered on the procedure to be followed before any property is put to sale, apart from assertion by the petitioner that he is a bonafide purchaser for value. The said suit was contested by the Department by filing a comprehensive written statement denying all such pleas and thereafter the issues have been framed, which reads as under: i) Whether the plaintiff is entitled to the suit property? ii) Whether the proclamation of sale dated 9-2-1988 is pursuance of attachment effected in March, 1987, is illegal and void? iii) Whether the plaintiff is entitled for permanent injunction, restraining D.2 from bringing suit schedule property to sale? iv) Whether the transaction of sale is hit by provisions of Income Tax Act? v) Whether the plaintiff is entitled for declaration as prayed for? vi) To what relief? On an examination of the aforesaid evidence and material on record, while decreeing the suit the Court taking up the issues 1 to 5 together and after referring to the depositions of the witnesses produced on behalf of the plaintiff, took note of the commencement of the proceedings by the tax authorities on 29-12-1981 and the Assessment orders passed on 6-3-1986 and 10-4-1987, but the suit document therein Ex.A.1, the Agreement of Sale came into existence on 14-12-1981, and observing specifically that the department has to institute a separate suit against the 3rd defendant to prove that intentionally in order to evade the payment of arrear such document was nominally executed in favour of the plaintiff. However, taking note of the objection filed by the plaintiff which was rejected and the said transfer by way of sale is not hit by the provisions of the Income Tax Act, and thus held the tax recovering officer is not empowered to declare about the alienation of the property as void under Section 281 of the Income Tax Act. Therefore, it was found that the proclamation of sale dated 9-2-1988 in pursuance of the attachment effected in the month of March, 1987 is illegal and void and thus the plaintiff is entitled to file the said suit for declaration and perpetual injunction. The said Judgment having not appealed has become final and conclusive. From the aforesaid categorical findings and the observations made, it cannot be said that though all such claims and questions which are sought to be raised in the present suit, no doubt could have formed part of the earlier proceedings and all these pleas might and ought to have been raised and decided also by the Court. However, there is total restraint on the part of the Court while disposing of the said earlier suit in doing so and which is quite evident from the very observations made therein where the department is left with liberty to opt for the appropriate remedies as contemplated at later stage assailing the very transfer. According to the learned Standing Counsel appearing for the respondent the present suit squarely falls, hence, under Rule 11 (6) of the Income Tax Rules which contemplates filing of a regular suit of comprehensive nature as and when the department refuses to upheld the steps taken by it. At this juncture, it is not necessary to fall back on the well laid principle of res judicata as contemplated under Section 11 of the Code of Civil Procedure as in the present case the earlier suit was not and could not have been a suit as contemplated on the aforesaid Rule 11 (6) of the Rules nor there could have been any decisions on all the counts in respect of the very title or correctness of the transfer as such. In the aforesaid circumstances, this Court does not find any merit in the contention urged on behalf of the petitioner to say that the decision in O.S.No.10 of 1988 will operate as resi\ judicata in the present proceedings. There are no merits in the revision and it is accordingly dismissed. No costs. __________________ B.PRAKASH RAO,J Date: 23-07-2010 Grk THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.R.P.No.4443 of 2006 Dated: -07-2010 THE HONOURABLE SRI JUSTICE B.PRAKASH RAO P.D Judgment in C.R.P.No.4443 of 2006