Bombay High Court
Kashinath Morsheth vs Ramchandra Gopinath on 29 June, 1883
Equivalent citations: (1883)ILR 7BOM408
JUDGMENT West, J.
1. It appears that when the Subordinate Judge originally disposed of Kashinath's claim to raise Ramchandra's attachment, there was, in fact, no attachment subsisting. The attachment had already been withdrawn by the Court on account of Ramchandra's having failed to pay some court fees. There was thus no object existing on which the adjudication could operate. A decision under such, circumstances, which must of necessity be void of any effect, could not properly be regarded as res judicata at, all. As it could have no real operation, it was as a mere scene in a play, which no one would be seriously interested in having performed in a different way. For res judicata to operate there must be an identity of the cause of action proposed for adjudication in a later suit with the cause disposed of in an earlier one; and this is impossible when in the earlier one there was no really existing cause at all See Savigny Syst., Section 300, and App. XVII.
2. Kashinath, however, did bring a suit to establish his right and that of his mortgagor, which, in his decision on the application to raise the attachment, the Subordinate Judge had pronounced against. His suit was dismissed, because, as the attachment had been raised, there was nothing to affect the right to possession which Kashinath asserted. Then Ramchandra attached the property a second time. Kashinath again sought to raise the attachment, and the Subordinate Judge declined to entertain this application, on the ground that, by the former order, Kashinath's right had been denied, and that the matter was res judicata. Now, a provisional order which grows into a permanent one when steps are not taken, or, being taken, fail to displace it within a certain time, becomes, no doubt, res judicata, after the lapse of that time, just as where an appeal is not made in the absence of an express provision to the contrary. But here the applicant sought to get the provisional order displaced by a formal suit and decree. The suit was dismissed because the matter of dispute had already been given up to the applicant. Thus he was prevented from getting the adjudication he sought by an act of the opposite party constituting, at any rate for the purposes of that suit, an admission of the right he proposed to establish. There was no submission to the order such as to give it a final effect, nor any decree in a suit confirming it. As the formal inquiry and adjudication were prevented, the earlier determination was not res judicata against him who did all that was incumbent on him to get the summary inquiry and order replaced by a formal trial and judgment. It is as though an investigation had been stopped midway.
3. The second attachment by the judgment-creditor, Ramchandra, after the first had been removed, was a new and distinct act, giving rise to a new cause of action, or complaint, to Kashinath, on which ho was entitled to a fresh inquiry and decision. All that could be taken as settled by the previous litigation was that Kashinath had no ground of complaint against Ramchandra, because Ramchandra was not then interfering with Kashinath's possession.
4. For these reasons we make the rule absolute for an inquiry into his claim, with costs.