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

3. We shall now briefly set out the material facts of the case. The mortgagees, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act. That property included both Baksht lands as well as other lands. The Act came into force after the passing of the aforementioned preliminary decree. The decree-holder filed petition for passing a final decree on September 19, 1955. The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under Section 3 (1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under Section 14 of the Act and got determined the compensation to which they were entitled under the Act. It is said that they did not proceed any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage-decree against the Bakasht lands. The judgment-debtors resisted that execution by filing an application under Section 47, Civil Procedure Code (Misc. Case No. 94 of 1959) on the ground that the decree cannot he executed in view of the provisions of the Act. That application was dismissed for the default of the judgment-debtors on September 12, 1959. A second application raising the same ground (Misc. Case No. 110 of 1959) was filed by the judgment debtors on September 24, 1959. That again was dismissed on July 23, 1960 for default of the judgment-debtors. A third application raising the same ground of objection (Misc. Case No. 91 of 1960) was filed by the judgment-debtors on September 12, 1960. That application was dismissed on January 4, 1962 after examining the contentions of the parties. Therein the execution court came to the conclusion that the objection raised by the judgment-debtors is barred on the principles of res judicata and further that the same has no merits. This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.

Reasoning: 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.