Patna High Court
Sheoratan Kurmi And After His Death ... vs Kalicharan Ram And Ors. on 3 July, 1967
Equivalent citations: AIR1968PAT270, AIR 1968 PATNA 270
JUDGMENT Ramratna Singh, J.
1. This appeal arises out of a restitution proceeding under Section 144 of the Code of Civil Procedure.
2. The appellants had obtained a decree in a title suit against the respondents; and in execution of that decree they had taken possession of the property in suit. The decree was, however, set aside ultimately by a superior court; and, therefore, the respondents made an application under Section 144, Code of Civil Procedure, for restitution, that is, for getting back possession of the suit property.
3. The application under Section 144, Code of Civil Procedure, was registered as Miscellaneous Case No. 5 of 1962 in the court of the first Additional Munsif at Gaya on the 16th June, 1962. After service of notice on the opposite party, who are the appellants in this Court, they appeared and applied for time on the 22nd September, 1962. on the ground that they had to obtain some documents. Thereafter, on two subsequent dates also the appellants applied for time in the case though on all the three dates the respondents had filed hazri. On the 11th December, 1962, both parties filed hazri and the case was taken up, but it had to be adjourned on account of a petition of the respondents to call for the records of the execution case in which possession had been delivered to the appellants decree-holders. The record was, however, not received from the District Judge of Gaya, and the last order dated the 13th March. 1963, reads as follows:--
"Requisition received with report. Both parties file hazri. Case called out. Pleader for the O. P. is ready. Pleader for applicant does not turn up nor responds on repeated calls. It is 2.30 P. M. Let the misc. case be dismissed for default."
4. Thereafter the respondents filed an application under Section 144 of the Code of Civil Procedure; and it was registered as Miscellaneous Case No. 2 of 1963 in the court of the first Additional Munsif at Gaya. After hearing both parties, the learned Munsif rejected the objection of the appellants-opposite party and allowed the application of the respondents for restoration of possession. Then, there was an appeal to the District Judge, which was dismissed by an Additional Subordinate Judge, Gaya who upheld the order of the Munsif.
5. In this Court counsel for the appellants submitted that a second application for restitution, which was numbered as Miscellaneous Case No. 2 of 1963, was not maintainable so long the order dated the 13th March, 1963, dismissing the first application for default stood, because of the principle of constructive res judicata. It is well settled that the principle of constructive res judicata applies to an execution proceeding under Section 144 in respect of a matter which was decided expressly or by implication in a proceeding. But in the instant case nothing was decided expressly and nothing could have been decided by implication, because the application under Section 144 was dismissed for default and by that date the appellants-opposite party had not filed any objection to the restitution proceeding. The mere fact that the application was dismissed for default in presence of the opposite party-appellants does not justify the inference that any matter was decided. There is a direct decision of a Bench of the Madras High Court in Somasundaram Pillai v. Chokhalinga Pillai, AIR 1917 Mad 185 in support of the view that the dismissal of an application under Section 144. Code of Civil Procedure, for default, does not bar a subsequent application under the same section on account of the principle of constructive res judicata. In that case, their Lordships said that an application for restitution is an application in execution, which has to be enquired into under Section 47; and the doctrine of constructive res judicata should not be applied to execution proceedings as a matter of course unless the decision of the question subsequently sought to be agitated was either expressly given or must be deemed to have been necessarily implied in the previous decision. It was further held on the facts of that case that an application for interest on an amount, paid to a decree-holder under a decree subsequently reversed in appeal and of which amount restitution was obtained in a prior application, is not barred as res judicata. There is no difference in principle between the Madras case and the instant case It if true that in the instant case possession has to be obtained by restitution of the movable property: but this fact does not make any difference in principle. This view is also supported by a Bench decision of the Bombay High Court, where an application for execution under Order 21 was dismissed for default, Such a dismissal it is well settled, does not bar a fresh application for execution by the decree-holder. In Lakshmibai Anant v. Ravji Bhikaji, AIR 1929 Bom 217, it was held that a darkhast that is an application disposed of for default of appearance, as the plaintiff's pleader was ablent, cannot be said to have been heard and decided on merits and that the decision in the previous darkhast passed without hearing the plaintiff or his pleader cannot be challenged except in a subsequent darkhast; and it does not operate as res judicata. Counsel for the appellants, however, relied on a Bench decision of this court in Bansidhar Estate Collieries and Industries Ltd. v. State, ILR 38 Pat 587 = (AIR 1959 Pat 319). In that case the plaintiff filed a petition for recording a compromise under Order 23. Rule 3 of the Code of Civil Procedure, but it was dismissed for default and a petition for its restoration was also dismissed, Thereupon, a second petition for recording the compromise was filed on the same set of facts as those of the first petition. On a plea raised by the defendant, it was held by the Bench that the second petition was barred by constructive res judicata. This decision was based on a different set of facts showing that the plaintiff of that suit had exhausted all possible remedies which the Code of Civil Procedure lays down against the dismissal of the first application and having lost on contest in all those proceedings the applicants came forward with a fresh application under Order 23, Rule 3 on the same set of facts and on the same cause of action for recording the alleged compromise. This decision is therefore, of no help to the appellants.
6. In view of the foregoing discussion, the second application under Section 144, Code of Civil Procedure, on the facts and circumstances of the case, was maintainable, The appeal is dismissed with costs.