Raj Bahadur v. Narain Prasad

Walsh and Dalal, JJ.:— After stating the facts as above, thus continued:—

We are of opinion that the proceedings in the suit of Musammat Katori subsequent to her death bar the present suit of the plaintiff. The court which heard Musammat Katori's suit was entitled under order XXII, rule 5, to decide the question whether Narain Prasad was or was not the legal representative of Musammat Katori and the decision would be binding on the parties. On behalf of the respondent reference was made to the case of Parsotans Rao v. Janki Bai. The facts of the case do not appear very clearly from the judgement and it is not clear whether the learned Judges desired to decide or not that once the question of a legal representative was decided by a court under order XXII, rule 5, it could be upon in a regular suit. Reference is there made to some vital issue arising in that case—whether two Hindu brothers were separate or were members of a joint Hindu family. If the learned Judges desired to decide that a question once determined under order XXII, rule 5, would not operate as res judicata, we are not prepared to follow that opinion, with all respect. In a Bombay case, Raoji Bhikaji Kondkar…Defendant v. Anant Laxman Kondkar…Plaintiff ., a Bench of that Court held that where a party died between the passing of a preliminary decree and a final decree in a suit for partition and the cause of action survived, the court was bound to determine the question of the successor in interest of the deceased party under order XXII, rule 5, and decide such dispute without referring the parties to a separate suit.

As to the award, Narain Prasad ought to have pleaded it in support of his right to be brought on the record as representative in interest of Musammat Katori. The words of section 11 of the Code of Civil Procedure, explanation IV, are:— “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit it must therefore be taken that in the suit of Musammat Katori a court having jurisdiction decided that Narain Prasad was not her representative in interest either through her son or on the basis of an award given by arbitration in a dispute between himself and the sons of Durga Prasad. We have already held that such a finding is binding on the parties.

We decree the appeal, restore the decree of the Subordinate Judge and dismiss the plaintiff's suit with costs of all the courts.