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(Boggavarapu) Bullayya And Others v. (Garlapati) Subbayya And Another
Factual and Procedural Background
The appeals arise from two suits (O.S. Nos. 620 and 621 of 1921) in which the respondents obtained preliminary mortgage decrees in respect of a specific undivided share of land alleged to be a service inam belonging to the defendants (now appellants). A decree for sale of the mortgaged properties was passed; sale proceeds were insufficient to satisfy the decree, so a personal decree against the judgment-debtors was entered and, in execution of that personal decree, the remaining (unmortgaged) portion of the property was attached. The attached portion and the portion previously sold are undivided parts of the same survey number.
The appellants filed an application under Section 47 of the CPC seeking release of the attachment on the ground that the land was unenfranchised service inam and therefore not liable to attachment. The respondents contended the land was not unenfranchised service inam and that the appellants' application was barred by res judicata by reason of a prior order (Ex. 1(a)) passed in execution proceedings. The District Munsif held the land to be unenfranchised service inam (hence unattachable) and found the earlier order did not operate as res judicata; he ordered the attachment to be raised. On appeal the Subordinate Judge set aside that order, agreeing on the merits that the land was service inam but holding that the prior order operated as res judicata and that, in any event (relying on Venkanna v. Chinna Appalaswami), service inam might be liable to attachment during the lifetime of the mortgagors. The present Civil Miscellaneous Second Appeals challenge that appellate conclusion.
Legal Issues Presented
- Whether the prior execution order (Ex. 1(a)) operates as res judicata and thereby bars the appellants from raising in the present proceedings the plea that the land is unattachable as unenfranchised service inam.
- Whether the District Munsif had jurisdiction in the O. 21, R. 90 proceeding (in substance S. 47 CPC) to determine that the land was service inam, and if a decision made without such jurisdiction can bind the parties.
- Whether the decision of the Collector under Section 13, Act 3 of 1895 (that the land is service inam) is final and binding on the civil courts in the presence of the earlier order Ex. 1(a).
- Whether, even if the land is service inam, it is liable to attachment during the lifetime of the mortgagors (as relied on in Venkanna v. Chinna Appalaswami).
Arguments of the Parties
Appellants' Arguments
- The District Munsif who passed Ex. 1(a) had no jurisdiction in the O. 21, R. 90 proceeding to decide whether the land was service inam or not; therefore his holding that the land was service inam (and hence saleable) was made without jurisdiction and should not bind the appellants.
- Under Act 3 of 1895 (as interpreted by the Collector's decision under S. 13), matters relating to service inam are within the Collector's province; the Collector's decision that the land was service inam is final and binding on civil courts, and effect should be given to that decision now. To this end, the appellants relied on several precedents (e.g., Rajah of Vizianagaram v. D. Chelliah; Kesaram Narasimhalu v. Narasimhalu Patnaithu; B. Seshayya v. B. Subbayya; Kandappa Achari v. Singarachari; Rajah of Kalahasti v. Munni Venkatadri Rao Garu) to support the proposition that the Collector's decision is final and binding.
Respondents' Contentions
- The respondents contended that the land was not unenfranchised service inam and that the appellants' application to release the attachment was barred by res judicata by virtue of the earlier order (Ex. 1(a)) passed in execution proceedings.
- Respondents did not seriously press the Venkanna v. Chinna Appalaswami authority after the Court noted a later decision (Kammara Chinna Nagiah v. Yerraguntla Pullayya) had dissented from Venkanna; accordingly respondents did not rely on Venkanna to support the Subordinate Judge's alternative view that service inam may be attachable during the mortgagors' lifetime.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkanna v. Chinna Appalaswami, AIR 1925 Mad 749 | Held that service inam land may be liable to attachment during the lifetime of the mortgagors. | The lower appellate Court relied on this decision to hold that even if the land is service inam it might be attachable. The High Court noted this authority but observed it had been recently considered and dissented from in a later case; respondents did not seriously argue that the Venkanna view was correct. |
| Kammara Chinna Nagiah v. Yerraguntla Pullayya, AIR 1931 Mad 610 | Contains a decision dissenting from Venkanna v. Chinna Appalaswami (i.e., against the proposition that service inam is attachable during mortgagors' lifetime, as earlier held in Venkanna). | The Court cited this later decision as a reason the respondents did not press the Venkanna authority; it diminished the force of the lower Court's reliance on Venkanna. |
| Rajah of Vizianagaram v. D. Chelliah | Stresses that an executing Court, even if it must go beyond the decree, should recognize that land is admittedly service inam and give effect to that fact. | The Court recognized the precedent but distinguished it: in Rajah of Vizianagaram there was no question of res judicata or of proceedings being barred by a prior order. Thus the Court held the present case is distinguishable and the precedent does not control here. |
| Kesaram Narasimhalu v. Narasimhalu Patnaithu, 1907 30 Mad 126 | One of several cases cited by appellants to support the finality of the Collector's decision under Act 3 of 1895. | The Court noted these authorities were cited but stated that it was unnecessary to consider them for the resolution of the res judicata question, and consequently did not decide upon their applicability in this case. |
| B. Seshayya v. B. Subbayya, 1907 30 Mad 320 | Also cited in support of the proposition that the Collector's decision under Act 3 of 1895 is final vis-à-vis civil courts. | The Court observed the case was cited but held it unnecessary to consider these precedents for the present decision about res judicata. |
| Kandappa Achari v. Singarachari, AIR 1927 Mad 433 | Cited among decisions supporting the finality / primacy of revenue decisions regarding inam lands. | The Court remarked the case was cited but again considered it unnecessary to examine these authorities for deciding the res judicata issue in the present appeal. |
| Rajah of Kalahasti v. Munni Venkatadri Rao Garu, AIR 1927 Mad 911 | Cited in the same context as other cases regarding Collector's decision and inam lands. | The Court noted the citation but did not consider the case because it resolved the matter on whether Ex. 1(a) operated as res judicata. |
| Somasundaram v. Kondayya, AIR 1926 Mad 12 | Establishes principle that an order confirming a court sale is an adjudication which can operate as res judicata in subsequent proceedings; the case involved preclusion where parties had notice of execution proceedings. | The Court applied the principle by analogy: it treated Ex. 1(a) (although made in an O. 21, R. 90 petition) as in substance an application under S. 47 CPC and concluded the decision in Ex. 1(a) operates as res judicata against the parties who were before the District Munsif. |
Court's Reasoning and Analysis
The Court identified the central question as whether the earlier execution order Ex. 1(a) operates as res judicata against the appellants in the present proceedings. The reasoning followed these steps:
- Background and character of Ex. 1(a): After the sale of the mortgaged portion, the appellants (judgment-debtors) filed petitions under O. 21, R. 90 seeking to set aside the sale, stressing that the suit land formed part of service inam. The District Munsif dismissed those petitions, finding the land had probably been enfranchised or resumed. That dismissal is Ex. 1(a).
- Later proceedings and conflicting decisions: The appellants later brought a suit under S. 13, Act 3 of 1895 before the Deputy Collector; the Deputy Collector held the land was service inam and distinguished the Munsif's earlier view. The Collector's decision (confirmed on appeal) is relied upon by the appellants as binding on civil courts.
- Characterisation of the earlier order as res judicata: The Court emphasized substance over form — although Ex. 1(a) is technically an O. 21, R. 90 order, the Court found the petition to have been, in substance, an application under S. 47 CPC (an application to set aside attachment/sale on the ground of exemption from attachment). When the substance of the application is examined, it is appropriate to treat Ex. 1(a) as a decision on the same matter addressed in the present proceedings.
- Jurisdictional defect not dispositive as between the parties: The Court accepted the appellants' submission that the District Munsif had no jurisdiction under O. 21, R. 90 to decide whether land was service inam. Nevertheless, the Court held that the fact that the Munsif mistakenly decided that question does not prevent the order from being binding on the parties who were subject to it. In other words, a decision made without jurisdiction in the proceeding's strict technical sense can still operate as res judicata as between the parties who litigated and were bound by it, so long as it remains in force.
- Distinction from authorities relied on by appellants: The Court acknowledged authorities (e.g., Rajah of Vizianagaram) that compel an executing court to recognize that land is service inam when that fact is admitted or established; but it distinguished those cases on the ground that they did not involve a prior order operating as res judicata. Because Ex. 1(a) exists and was binding on the parties, the usual rule giving effect to the Collector's decision could not be invoked to the appellants' advantage unless Ex. 1(a) were set aside.
- Application of analogous precedent: The Court cited Somasundaram v. Kondayya for the proposition that an adjudication in execution proceedings can preclude parties from later asserting a contrary position. Applying that principle and noting that both the previously sold portion and the attached portion form undivided parts of the same survey number, the Court held Ex. 1(a)'s adjudication extends to the portions now sought to be made subject to execution.
- Conclusion of analysis: For these reasons the Court concluded that Ex. 1(a) operates as res judicata in the present proceedings; therefore the lower appellate Court's reliance on res judicata was correct and the appeals must fail.
Holding and Implications
APPEALS DISMISSED.
Holding (core ruling): The High Court held that the prior order Ex. 1(a), though passed in an O. 21, R. 90 proceeding and notwithstanding the District Munsif's lack of jurisdiction to decide the service inam question, operates as res judicata between the parties who were before him. As a result, the Subordinate Judge's view that the prior order barred the appellants from raising the plea of non-attachability was upheld and the civil miscellaneous second appeals were dismissed.
Direct consequences for the parties:
- The appellate court's decision setting aside the District Munsif's order (i.e., reinstating attachment) is upheld.
- Ex. 1(a) remains operative and precludes the appellants from re-litigating the question of the land's attachability in the present proceedings.
- Costs: the respondents will receive costs in only one of the appeals (the Court awarded costs to respondents in one appeal only).
Broader implications: The Court resolved the dispute on the basis that a prior adjudication in execution proceedings may operate as res judicata between parties even if the adjudicating officer lacked jurisdiction to decide the substantive question formally; the decision applied established principles (illustrated by Somasundaram v. Kondayya) rather than resolving or overruling other authorities concerning the finality of Collector's decisions under Act 3 of 1895. The opinion did not indicate that it was establishing a novel precedent beyond applying res judicata principles to the facts before it.
Disposition: Appeals dismissed.
1. In these Civil Miscellaneous Second Appeals the defendants in O.S Nos. 620 and 621 of 1921 on the file of the Subordinate Judge of Bapatla are the appellants. The decree-holders, who are the same in both the suits, are the respondents. They obtained preliminary decrees against the respondents as the defendants in the two suits on a mortgage given by them in respect of a specific undivided share in a certain land alleged to be the service inam belonging to the defendants. A decree for the sale of the properties was passed. As it was found that the proceeds of the sale were insufficient to meet the decree a personal decree was passed and in execution of that persona decree the remaining portion of the property which had not been mortgaged was attached. This attached portion of the property and the portion already sold form undivided parts of the same survey number.
2. When this property was attached the appellants judgment-debtors intervened with a petition under Section 47 of the CPC, alleging that the land was service inam and was consequently not liable to attachment and that therefore it should be released from attachment. The respondents contended that the land was not unenfranchised service inam and that the application of the appellants was barred by res judicata by a certain prior order passed in execution of the decree in O.S Nos. 620 and 621 at an earlier stage. The District Munsif held that the land was unenfranchised service inam and was therefore unattachable, and that the previous order did not operate as res judicata.
3. In the result the attachment was ordered to be raised by the first Court. In appeal this order was set aside by the learned Subordinate Judge. He held on the merits that the land was service inam agreeing with the District Munsif on this point: but he held that the previous order referred to operated as res judicata and therefore it was not open to the judgment-debtors to raise the plea that the land was unattachable. He further held that even if the plea of res judicata cannot be maintained still, though the land was service inam, it was liable to attachment during the lifetime of the mortgagors, relying on a decision in Venkanna v. Chinna Appalaswami . AIR 1925 Mad 749. This decision has been recently considered and dissented from in Kammara Chinna Nagiah v. Yerraguntla Pullayya . AIR 1931 Mad 610, and having regard to this decision the respondents did not seriously argue that the lower appellate Court's decision on this point is correct. The concurrent finding of the lower Courts that the land is service inam, also cannot be questioned in these second appeals. So the position is this if the previous order relied on as a bar to the present proceedings does not operate as res judicata, then the property is not liable to attachment and the lower Court's order will have to be set aside. Therefore the question for consideration is whether the previous order passed in execution would operate as res judicata in the present proceedings.
4. The order is Ex. 1(a) and it was passed in the following circumstances. After the portion of the property subject to the mortgage was ordered to be sold in execution of the mortgage decrees, the judgment-debtors, that is the appellants, filed an application under O. 21, R. 90 to set aside the sale on the ground of irregularity and fraud and they alleged in the petition that the suit land formed part of service inam. The sale was not attacked seriously on the ground of irregularity and fraud, but the judgment-debtors seem to have stressed the point that the land in question formed part of the service inam. The Munsif held that though the land was probably service inam once, it was subsequently enfranchised or resumed and therefore he dismissed the petitions. It is this order that is now sought to be relied on as constituting res judicata in the present proceedings. After this order of the District Munsif the judgment-debtors filed a suit before the Deputy Collector under S. 13, Act 3 of 1895, with respect to this land for the recovery of the emoluments, the land being a village carpenter's inam. The Deputy Collector held that the land is service inam land thereby differing from the District Munsif who passed the order under O. 21, R. 90. He also held that the melwaram constitutes the emoluments of the office and that the civil Courts should decide whether the kudivaram also constitutes the emoluments. As the suit was one for the recovery of possession of the land he dismissed it, and this decision was confirmed in appeal by the Collector. This decision of the revenue officer is also relied on by the appellants in support of their arguments. The present proceedings originated after this decision.
5. As I have already stated, the real question in the case is whether the order Ex. 1(a) is res judicata in the present proceedings. The appellants' arguments are twofold: first that the learned District Munsif who passed the order under O. 21, R. 90 had no jurisdiction in such, a proceeding to decide whether the land was service inam or not and that in holding that the land was service inam and therefore saleable, he acted without jurisdiction, and (2) that, whatever be the District Munsif's opinion, the matter being one relating to service inam, under the provisions of Act 3 of 1895, the decision of the Collector was final and is binding on the civil Courts and effect should now be given to it. In support of the latter proposition various decisions were cited by the learned counsel for the appellants, such as Rajah of Vizianagaram v. D. Chelliah3, Kesaram Narasimhalu v. Narasimhalu Patnaithu . 1907 30 Mad 126, B. Seshayya v. B. Subbayya . 1907 30 Mad 320., Kandappa Achari v. Singarachari . AIR 1927 Mad. 433 Rajah of Kalahasti v. Munni Venkatadri Rao Garu . AIR 1927 Mad 911, etc., but in the view that I take of the case it is not necessary to consider these cases, for in my opinion the question of res judicata which is the main question involved in those appeals has to be decided apart from those considerations. For the purposes of discussion we may well as flume that the arguments of the learned counsel under the second heading are valid. But the point is, can effect be given to those arguments having regard to the previous order Ex. I(a)? Rightly or wrongly the District Munsif passed an order that the land is service inam land and to this order the present judgment-debtors were parties. So long as this order remains in force and is not set aside, how can effect be given to subsequent decisions? It is true that the decision of the Collector under Act 3 of 1895 is final and is binding upon the civil Courts. That would be so, no doubt ordinarily, but if the parties had subjected themselves already to an order the purport of which is opposed to the decision of the Collector, how can they refuse to recognize that order so long as that order remains in force? This is the real question for decision in this case. It is true that the District Munsif has no jurisdiction under O. 21, R. 90 to go behind the decree and decide whether the land is service inam or not.
6. But as a matter of fact he did decide in this case that the land is service inam land. That decision is without jurisdiction; but that to my mind does not affect the question regarding the binding nature of that decision on those persons who were parties to it. So long as that decision remains in force it is not open to the Courts to recognize and give effect to the decision of the Collector even though the Collector's decision would be binding on the civil Courts ordinarily. The decision in Rajah of Vizianagaram v. Dentiwada Chelliah strenuously stressed by the learned counsel for the appellants no doubt says that an executing Court, even if it has to go beyond the decree in doing so, should recognize the fact that the land is admittedly service inam land and give effect to it. But it must be remembered that in that case there was no question of res judicata and no room for the argument that the proceedings were barred by res judicata, on account of a previous order as in the present case. This, to my mind, is the distinction which distinguishes the present case from all the cases relied on by the, learned counsel for the appellants. In this connexion attention may be drawn to the decision in Somasundaram v. Kondayya . AIR 1926 Mad 12. In that case:
“P, the owner of an unenfranchised inam, mortgaged it to the defendant. The inam which was then unenfranchised, was subsequently sold in execution of a money decree obtained against P. and was purchased by the plaintiff's vendor. The inam was subsequently enfranchised, and, after its enfranchisement was sold by P. to the defendant. In a suit by the plaintiff to redeem the mortgage in favour of the defendant, the latter pleaded that, as the property was inalienable on the date of the Court sale at which the plaintiff's vendor purchased, the plaintiffs vendor and the plaintiff acquired no valid title to the property which entitled the plaintiff to redeem the suit mortgage. P. had notice of the execution proceedings which culminated in the Court sale, at which the plaintiff's vendor purchased. It was held that P. and his representative, the defendant, were precluded from contending that the property was at the date of the Court sale inalienable, and that the plaintiff acquired no valid title to the property by means of such sale.”
7. Shortly stated, the decision was that the order confirming the sale was an adjudication which operated as res judicata in the subsequent suit. I think the principle of that decision may well be applied to the present case. Though the petition which resulted in Ex. 1(a) was under O. 21, R. 90, it is clear that it was created as an application under Section 47 of the CPC. In considering whether an application is under Section 47 of the CPC, or not we must examine the substance of the application to find out its true nature and should not be guided solely by the heading given to it by the applicant. It was not seriously contended that the application should not be considered as one falling under S. 47, but it was suggested that the decision of the District Munsif related to the land that formed the subject-matter of the mortgage suit and not to the land which is now sought to be sold in execution of the personal decree. But it must be remembered that both the items formed undivided portions of the same survey number and therefore the decision in Ex. 1(a) will equally apply to all portions of the same survey number. For the above reasons I am not inclined to accept the arguments of the learned counsel for the appellants. I am of opinion that the order Ex. 1(a) would operate as res judicata in the present proceedings and therefore the lower Court's order is right. The civil miscellaneous second appeals are dismissed, but the respondents will get costs only in one of them.
P.R.S/S.N
8. Appeals dismissed.
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