1. Sivathanu Pillai Krishnamoorthy Pillai, residing with Vakil Sivathanu Pillai of Nagercoil, is the revision petitioner; and he seems to be very tenacious.
2. He was the first defendant in O.S 531/58, a suit for redemption, decreed on 11-1-1962. It appears that when execution was taken out in E.P 286/63, value of improvements was claimed. Assessment of the claim took time and the E.P was dismissed for default on 25-3-1969. The respondent herein later filed E.P 1109/74. She was not a party to the decree. Notice on the E.P was served on the first defendant on 20-2-1975. The other parties were served later, and on 20-3-1976 the Court impleaded the respondent as additional 3rd plaintiff. On 17-6-1976 deposit of mortgage money and value of improvements was ordered, and the deposit was duly made. The 16th defendant claimed “kudikidappu” and that claim was referred to the Land Tribunal under Section 125 of Act 1/64. The tribunal's findings became available by 3-1-1977 and the E.P was then posted for evidence and hearing to 5-2-1977. The first defendant then applied for time; and on 14-2-1977 (i.e about two years after service of notice) he filed objections claiming that he was a tenant under Section 4A of Act 1/64. By order dated 31-3-1977, the Court upheld his tenancy claim. But the respondent applied for review, and by another order dated 27-3-1978 the Court held that the petitioner-1st defendant was entitled to the benefit of Section 4A. He appealed, and the District Court remanded the matter. After remand, the executing Court heard the matter again and passed an order on 7-8-1980 rejecting the claim based on Section 4A.
3. The petitioner then came to this Court, in C.R.P No. 2017/80, challenging the order dated 7-8-1980. Though a ground was taken against the finding regarding Section 4A, that was not argued or pressed. The only point urged was that the E.P of 1974 was time barred. I dealt with this contention and held that the petitioner was precluded from raising it by reason of constructive res judicata. The C.R.P was accordingly dismissed on 5-3-1981.
4. The petitioner was in the meanwhile fighting his battle on another front also. He had filed O.A 514/74, before the Land Tribunal for purchase of landlord's rights. Obviously, the claim there was also one of tenancy. The tribunal dismissed the O.A An appeal (A.A 353/76) was taken before the appellate authority, but that also did not succeed. C.R.P No. 902/79 filed against the appellate authority's order was pending all the while before this Court. On 9-6-1981 my learned brother Balakrishna Menon, J., disposed it of by directing the Tribunal to reconsider the matter, as adequate opportunity had not been given to the 1st defendant to establish his claim. It was pointed out on behalf of the respondent that the self-same tenancy claim had been considered in E.P 1101/74 and that the decision had become final, in view of the order dated 5-3-1981 in C.R.P No. 2017/80. His Lordship observed that was a matter the respondent could raise before the Tribunal.
5. Armed with the above observation in C.R.P No. 902/79, the first defendant again attempted to resist execution in E.P 1101/74, when it was taken up after the disposal of C.R.P No. 2017/80. He told the executing Court that the High Court had directed a re-examination of the tenancy claim by the tribunal (in the O.A proceedings) and that till that was completed, execution could not proceed. One can easily see that the attempt was again to bide time, because even if the tribunal happened to dismiss the O.A on the ground that a competent civil Court had finally rejected the claim, there could still be an appeal to the appellate authority and probably a revision to this Court. A more formidable contention was also raised before the executing Court; and that was to the effect that its decision on the tenancy claim, in E.A 1101/74, was a nullity, in view of the decision of this Court in Kesava Bhat v. Subraya Bhat 766) : (AIR 1980 Ker 40) (FB). But the executing Court refused to be intimidated by the decisions referred to. In regard to the proceedings before the Land Tribunal, covered by C.R.P 902/79, the Court held that those were independent proceedings and that so long as the execution proceedings were not stayed, it could not hold its hands. The decision in Keshava Bhat was got over by holding that the tenancy question had become final by reason of the decision in C.R.P 2017/80, and that the validity of the decision in E.P No. 1101/74 was no longer open to question. In this view, the Court dismissed E.A No. 765/81 seeking to set aside the order for delivery and E.A 785/81 for staying execution proceedings.
6. It is the aforesaid order dated 20-6-1981 that is now being challenged by the 1st defendant, in the present revision. The suit was of the year 1958 and the decree was in 1962. As pointed out by the Court below, the judgment-debtor has been able to retain the property for nearly 23 years after the suit. He is certainly tenacious, because the contention now raised is that the Court below has committed a serious error in applying the principles of res judicata.
7. The argument is this. He had admittedly raised the claim based on Section 4A of Act 1/64 before the execution Court. Its decision became final with the disposal of C.R.P 1207/80. In that sense, the principles of res judicata may be attracted. But in view of the decision in Keshava Bhat (1979 Ker LT 766) : (AIR 1980 Ker 40) (FB), it has now to be held that the Civil Court had no jurisdiction to deal with a tenancy claim, and that the decision in E.P 1101/74 was to that extent a nullity. A decision rendered by a Civil Court on a matter over which it has no jurisdiction is not a decision by a competent Court, and therefore the rule of res judicata cannot be attracted.
8. This contention is sought to be met by the respondent herein by pointing out that E.P No. 1101/74 is only a continuation of E.P No. 286/63. This Court has held that the Civil Court's jurisdiction does not stand ousted under Section 125 of Act I/64 in respect of proceedings which were pending on 1-1-1970. The execution proceedings in this case had commenced in 1963 and consequently the executing Court, on the authority of this Court, had ample jurisdiction to deal with the judgment-debtors tenancy claim. Its decision on that claim was therefore a decision by a competent court, and there is therefore no escape from the rule of res judicata.
9. I think that the respondents' contention is sound. The decision in Keshava Bhat (1979 Ker LT 766):(AIR 1980 Ker 40) (FB) taken along with the other decisions of this Court, admittedly establish the principle that in respect of suits or execution proceedings pending on 1-1-70, the bar of jurisdiction under Section 125 of Act I/64 would not apply. In those proceedings, the civil courts jurisdiction to decide tenancy questions survives. It may be that the tenancy itself is a creation of Act 35/69 which came into force only on 1-1-1970. But that does not affect the Civil Court's jurisdiction to deal with such a claim in pending proceedings.
10. But I do not wish to rest my decision on the above basis alone. I shall assume for the present that E.P 1101/74 was not a continuation of proceedings pending on 1-1-70, and that the executing Court's order rejecting the petitioner's tenancy claim was a decision without jurisdiction. Does it however follow that the rule of res judicata cannot be applied?
11. It seems to me that the Supreme Court's decision, in Mohanlal v. Benoy Krishna (AIR 1953 SC 65) furnishes a complete answer to the above question. That case had come up in appeal from a decision of the Calcutta High Court which had taken the view that (at p. 70).
“a judgment delivered by a Court not competent to deliver it cannot operate as res judicata, and the order of the Subordinate Judge of Asansol being wholly without jurisdiction cannot be relied upon to found a defence upon the principle of res judicata”.
But the Supreme Court (Ghulam Hasan, J., with whom Mahajan and Bose, JJ. agreed) did not accept the above proposition as correct. Said the Supreme Court (at p. 73):—
“The question which arises in the present case is not whether the execution Court at Asansol had or had not jurisdiction to entertain the execution application after it had sent the certificate under S. 41, but whether the judgment-debtor is precluded by the principle of constructive res judicata from raising the question of jurisdiction.”
Their Lordships were thus prepared to assume that the order of the Asansol Court was wholly without jurisdiction; but still, the question was whether a party who had opportunity to raise it before the Asansol Court and had failed to utilise it could be permitted to raise it later.
11A. In the present case, the petitioner herein could have told the executing Court that it had no jurisdiction to deal with his tenancy claim. He did not do it; on the other hand, he wanted that Court to exemine his claim of tenancy. After getting an adverse decision, he came to this Court in C.R.P No. 1207/80. Here also, he did not raise the point about the Civil Court's jurisdiction; on the other hand, the plea was only that the Court should have adjudicated the claim in his favour. It may also be noticed that while decision in Keshava Bhat (1979 Ker LT 766) : (AIR 1980 Ker 40) (FB) was rendered in August, 1979 the order of the executing Court in E.P 1101/74 was on 7-8-1980. C.R.P No. 2017/80 was filed in August, 1980 and was disposed of in March, 1981. I would therefore hold that the petitioner is precluded by constructive res judicata from raising the point, at a later stage in the same execution proceedings.
12. A similar question was examined by me in Gopalan Gopi v. Bhaskaran, reported in 1980 Ker LT 862. The contention there, raised in execution, was that the decree was nullity. But the same question about the Court's jurisdiction had been raised in the suit itself. Dealing with the argument that the rule of res judicata could not be pressed into service in a case where the Court's competence was involved, I said:—
“Counsel for the petitioners submits that the executing Court has jurisdiction to go into the question whether the decree is a nullity or not. That is a well-settled proposition. But where the identical question of jurisdiction had been raised before the Court trying the suit and had been found against, and that finding has been permitted to become final, the question cannot be raised again in execution proceedings, in view of the general principle of res judicata. The Court which tried the suit was certainly competent to decide whether it had jurisdiction or not. The decision might be right or wrong; but when once a decision is rendered and that becomes final, it is a decision by a competent Court on an issue raised by the parties, and the parties will be precluded from raising it over again in the same proceedings or in other proceedings. That is not because the executing Court has no jurisdiction to deal with the question of nullity, but because the parties are prevented from raising the same question again, in view of the finality of the decision rendered earlier. The principles of res judicata are part of the principles of estoppel, res judicata is estoppel by judgment. The Court may or may not have jurisdiction, but its doors will be shut against a party who had obtained an adverse and final decision earlier on the same question. The rule that the executing Court can always go into the question whether a decree is a nullity or not has to be read subject to the procedural rule that matters which have become final cannot be re-agitated.”
And in C.R.P No. 1207 of 1980 also I had observed.—
“When res judicata or constructive res judicata is pleaded in defence by one party in answer to an attack by the other, the question is not whether the attack is justified or whether the point was properly considered by the Court at the earlier stage; the question is whether that party is precluded from making the attack at that stage in view of what had happened earlier.”
13. Mr. Sankarasubban for the petitioner attempts to distinguish the above decisions by urging that they were not cases where the absence of jurisdiction was inherent, as in the present case. That no such distinction is possible in the context of a plea of res judicata is clear from Mohanlal's case (AIR 1953 SC 65) itself. Paragraphs (12) and (24) of the judgment show that the Calcutta High Court had attempted to draw such a distinction in the decision appealed against, and that their Lordships of the Supreme Court were not impressed by the attempt.
14. Assuming for a moment that different considerations would apply where there is an inherent want of jurisdiction I shall proceed to examine the question whether the bar of Section 125 of Act I/64 leads to such a result in the present case. The redemption suit was filed before a Court which was competent to try it and the execution pietition was also filed before a Court competent to execute the decree. But for the bar of Section 125 of Act I/64, the executing Court was also admittedly competent to decide the tenancy claim. The decision in Keshava Bhat (1979 Ker LT 766) : (AIR 1980 Ker 40) (FB), only said that on a proper construction of Section 125 of Act I/64, there was an ouster of the Civil Court's jurisdiction, which was otherwise there, to deal with tenancy questions. When a civil court, overlooks this bar and proceeds to adjudicate a tenancy claim, the most that could be said is that the Court has wrongly construed Section 125. In my opinion, such a situation cannot be equated to a position of inherent want of jurisdiction.
15. In Bindeswari v. Bageshwari (AIR 1936 PC 46), the question was as to the effect of an alienation made in violation of a statutory prohibition. Sec. 12A of the Chota Nagpur Encumbered Estates Act, 1876 provided that certain alienations could be effected only with the sanction of the Commissioner, and that alienations made without such sanction were void. In a prior suit between the parties, the Court had held that a particular transaction was outside the purview of the Act. In a subsequent litigation, the point was attempted to be reopened on the ground that the alienation was void and that the transaction was a nullity. But the Privy Council held that the party could not be permitted to reopen the question because the Court had jurisdiction to decide whether the property was under the purview of the Act and even if its decision was erroneous, that decision was by a competent Court. In Mahadeo Prasad Bhagat…Defendant v. Bhagwat Narain Singh…Plaintiff . (AIR 1938 Pat 427), the property was sold in Court auction. The judgment-debtor had contended in execution that the sale was without jurisdiction, as no sanction from the Commissioner had been obtained under the Chota Nagpur Act referred to above. This point was not decided, but the property was sold. In a subsequent action for a declaration that the sale was void, it was held that the plea was barred by constructive res judicata. And in Mohanlal (AIR 1953 SC 65), the Supreme Court has approved the above decision of the Patna High Court as laying down the correct law. In Isher Singh v. Sarwan Singh (AIR 1965 SC 948), a point had been raised before the appellate Court that the appeal was not maintainable under Section 96 C.P.C, but that was overruled. In subsequent proceedings, it was contended that the appellate decree was without jurisdiction, in view of Section 96; but the Supreme Court held (at p. 951 of AIR):—
“The District Judge had undoubtedly jurisdiction to construe the terms of Section 96 C.P.C and even if the construction be erroneous, and that is the utmost that learned counsel can submit, the appellate judgment was not a nullity and cannot be disregarded or attacked collaterally as passed by a Court not competent to entertain it”.
These decisions clearly show that where a Court assumes jurisdiction erroneously disregarding a statutory restriction, its decision will operate as res judicata. I do not think that disregard of Sec. 125 of Act I/64 stands on a different footing.
16. The decision in Kunheema Umma v. Balakrishnan Nair (1967 Ker LT 629) : (AIR 1967 Ker 97) is also instructive. There, a court sale was effected on 25-3-1957. Ordinance I/57 came into force on 11-4-57 and was replaced by Act I/57 from 31-5-57. Section 4 of the Act provided that execution of certain types of decrees would stand stayed. The defendants filed an application for staying confirmation of the sale effected on 25-3-57, in view of Sec. 4, but that application was dismissed by order dated 22-7-57. The sale itself was confirmed the next day, and delivery effected on 29-9-57. The defendants thereupon sought redelivery on the ground that the confirmation of the sale was without jurisdiction in view of Sec. 4. The Court held that the order dated 22-7-1957 was a bar to the application for redelivery. A Division Bench of this Court upheld the above view, holding that the executings Court had jurisdiction to decide whether Section 4 of Act I/57 applied to the case and that its decision would operate as res judicata. Applying the same principle, it is possible to say that had the petitioner in this case raised the question as to applicability of Section 125 of Act I/64 to the tenancy claim raised in the E.P, the executing Court had jurisdiction to decide it; and having failed to do so, the bar of constructive res judicata should operate.
17. Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) cited by counsel was concerned with the scope of Section 11 of the Suits Valuation Act, 1887. In Mathura Prasad v. Dossibai, (AIR 1971 SC 2355) and Jai Singh Jairam v. Naman Chand (AIR 1980 SC 1201), it was held that a decision on a pure question of law, unrelated to the rights of parties, would not operate as res judicata if the law was subsequently changed by a competent authority so as to create a situation where the application of res judicata would amount to applying a special rule of law for the parties. Assuming that the principle would apply to a matter of procedure also, there was no decision in the E.P here on a pure question of law (such as the scope of Section 125 of Act I/64) confining the parties to the application of a special rule of law. As noticed, the 16th defendant had raised a tenancy claim and the matter was referred to the Land Tribunal by the executing court. The petitioner-1st defendant did not seek a decision on the applicability of Section 125 to his case and there was consequently no decision of which he could complain that it has created a special rule for him.
18. The only other question is about E.A No. 764/81, also disposed of along with E.As 765 and 785. In E.A 764/81 the petitioner wanted a Commissioner to be appointed for assessing value of improvements. The court held that such value had been ascertained earlier. In view of the Full Bench decision in Paily v. Augusthy (1967 Ker LT 189) : (AIR 1967 Ker 247), the claim for value of improvements made after the deposit of mortgage money and compensation cannot be sustained. If however, the condition of the improvements had materially changed between the date of the assessment and the date of deposit, revaluation of the same would be permissible under Section 5(3) of Act 29/58. For this limited purpose, a commission can issue and to this extent, the order in E.A 764/81 shall stand modified. I would however add that delivery need not be indefinitely postponed for that purpose. The Commissioner appointed for revaluation can accompany the amin deputed for making delivery; and if anything more is ultimately found due to the first defendant, the respondent will be liable for payment of the same.
In the result, the orders of the Court below in E.A No. 765 and E.A No. 785 are upheld and the revisions directed against them are dismissed. The order in E.A No. 764 will stand modified as indicated earlier. Disposed as above. No costs.
Order accordingly.