Bombay High Court
Kashinath Krishna Joshi vs Dhondshet Bhawanshet Shetye on 14 August, 1916
Equivalent citations: (1916)18BOMLR786, AIR 1916 BOMBAY 138
JUDGMENT Beaman, J.
1. We have had a very full and interesting argument upon the two points raised in this appeal, viz., whether, the plaintiff's contention, which succeeded in the Courts below, is not res judicata against him, and whether his prayer to have the sale of 1912 set aside is not time-barred.
2. We are of opinion that this is not a case of an alleged res judicata against a Statute, and we are therefore not called upon to examine certain cases which have been cited to us and which, on a first view, may appear to be in conflict. What we think clearly was res judicata here was the question of fact raised again by the plaintiff in this suit and decided in his favour, viz., whether or not the lands sold at the Court-sale of 1912 were occupancy lands within the prohibition of Section 9 of the Khoti Settlement Act. That was a point which the plaintiff, if he meant to rely upon it at all, was bound to take, we think, at the time the Court proposed to sell the land in suit. It is not as though it was then admitted that the lands to be sold were occupancy lands. Had that been so, no Court could have been found to sell them in the face of the direct prohibition of the Legislature. When, therefore, we find the Court selling these lands without any challenge by, or protest on behalf of, the judgment-debtor, we take it that they must have been sold on the basis of the judgment-debtor having a saleable interest in them. Omnia prossumuntur rite esse acta. Inferentially, then, the sale of 1912 decided as between the plaintiff and the defendant, that is to say, the judgment-debtor and judgment-creditor, that the lands sold were not occupancy lands. Here the plaintiff has brought the suit to have it established that they were, and he was allowed to raise that question of fact and the whole case has turned upon the answer to it. It is precisely that part of the plaintiff's present suit which, in our opinion, was res judicata within the language and spirit of Section 11 of the Civil Procedure Code.
3. Much has been said here upon the applicability of certain rules in Order XXI to the case of a judgment-debtor. Mr. Shingne argued that part of the respondent's case with very great thoroughness and ability, and for my part I am very clearly of opinion that none of those rules were ever intended to apply to the judgment-debtor himself.
4. It is not upon that ground that we think the plea of res judicata is here established so much as upon general principle and having regard to what is in controversy, what was and is to be inquired into and what has in fact been finally determined in this case by the executing Court between the executing creditor and judgment-debtor. The present suit is really a continuation of that execution proceeding or at any rate has been treated as such in both the lower Courts. The parties are, therefore, the same and what has resulted is that a question of fact, which, as we have shown, was decided, if not explicitly yet by necessary implication, between them in 1910, has been allowed to be re-opened and investigated and adjudicated upon, a second time.
5. That being so, we have little hesitation in coming to the conclusion that the appellant's contention upon this point is sound and must prevail. It becomes, therefore, unnecessary to go into the second equally interesting point of limitation upon which the appellant has relied.
6. We think that the appeal must be allowed and the plaintiff's suit dismissed with all costs on him throughout.