Case: Shivashankar Prasad Shah &amp; Ors Vs. Baikunth Nath Singh &amp; Ors

the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act.15. In Krishna Prasad v. Gauri Kumari Devi, (1962) Supp 3 SCR 564=(AIR 1962 SC 1464 ) the question that arose for decision by the Court was whether a mortgage decree-holder could proceed against the properties of the mortgagor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act. That question was answered in the negative. In the course of the judgment Gajendragadkar, J., (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claims Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the Court of ordinary civil jurisdiction." Proceeding further he observed:"It is in the light of this scheme of the Act that we must refer toSection4 (a) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation ofSection4 (d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained inSection16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued underSection3. Therefore, in construingSection4 (d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act."and again at page 578 (of SCR)=(at p. 1470 of AIR):"Having regard to the said scheme, it is difficult to confine the application ofSection4 (d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment debtor."16. Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801 (supra) - a case arising under the Act:"From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act."17. For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412 ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441 =(AIR 1961 SC 1790 ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464 ) is as explained by Kamala Sahai J., in that case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact R. 9, O. 9, Civil Procedure Code which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai, (1890) 17 Ind Appg to the appellants as the Bakasht lands which form part of the mortgaged property had not vested in the State, the execution can proceed against those lands.Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801   (supra) - a case arising under thethe principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412  ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441  =(AIR 1961 SC 1790  ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464  ) is as explained by Kamala Sahai J., in that case.The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law - see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar, 31. Bom LR 400 = (AIR 1929 Bom 217  ), Even the dismissal for default of objections raised underSection47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution-see Bahir Das Pal v. Girish Chandra Pal, AIR 1923 Cal 287  ; Bhagwati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354  ; Jethmal v. Mst. Sakina, AIR 1961 Raj 59  ; Bishwanath Kundu v. Smt, Subala Dassi, AIR 1962 Cal 272  . We do not think that the decision in Ramnarain v. Basudeo, ILR 25 Pat 595 = (AIR 1947 Pat 298  ) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant iswe have to see whether the entire mortgaged property had vested in the State in pursuance of the notification underSection3 or only the mortgaged property minus the Bakasht lands.13. In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441   = (AIR 1961 SC 1790  ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act.