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Mahboob Sahab vs Syed Ismail & Ors on 23 March, 1995 cites

Iftikhar Ahmed And Others vs Syed Meharban Ali And Others on 26 February, 1974

11. When the evidence on record establishes that the suit in OS No.3/1/1951 was collusive or fraudulent to defraud the creditors, it is a relevant fact and the court would take cognizance thereof to find whether the trial court is precluded to try the issue. The High Court had not adverted to nor bestowed its attention, this aspect of the matter except mechanical application of the principles laid by this Court in Iftikhar Ahmed's case (supra). The pleadings in OS No.3/1/1951 were not produced in the courts below. The judgment, Annexure 11 indicates that the respondents and their another brother and the parents were impleaded as defendants 1 to 5. Sixth defendant was the decree holder in another suit. It was claimed therein that the defendants 1 to 4 were said to have executed possessory mortgage in favour of one Ismail the plaintiff therein a joint written statement was filed by them admitting the claim of the plaintiff who had pleaded the gift said to have been given by Maqdoom in favour of the three sons and his wife. They have admitted the same. Thus it would be clear that there was no conflict of interest between the defendants in that suit On the other hand they had confessed to the claim set up by the alleged possessory mortgage therein. Though the appellant claimed title to the property through the parents of the respondents, there was neither conflict of interest nor was it necessary to decide about the validity of the gift said to have 175 been executed by Maqdoom. The dispute therein was whether the possessory mortgagee was bound by the decree and the creditor could proceed against the Maqdoom and the said property is liable to sale for realisation of his decree debt? In that context the relevancy or validity of the gift is immaterial. It was admitted therein that they had executed possessory mortgage in favour of Ibrahim, plaintiff therein. On that basis, the only question would have been whether he would be entitled to resist the execution of the decree obtained against Maqdoom by the 6th defendant therein? The oral gift or sale of 4 acres under Ex.D-3 was not the subject-matter of OS No. 3/1/1951. The High Court, therefore, committed gross palpable error of law in applying the doctrine of res judicata between codefendants relying upon the decree in OS No.3/1/1951 dated September 24, 1951, even if it could be pressed into service in the second appeal.
Supreme Court of India Cites 6 - Cited by 43 - K K Mathew - Full Document

Shashibushan Prasad Misilra & Anr vs Babuji Rai & Ors on 27 November, 1968

8.Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial court negatived the plea of res judicata as a preliminary issue. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the appellate court on its basis. Thereby the findings of the trial court that the decree in OS No.3/1/1951 does not operate as a res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in this case. It is true that under s. 11 C.P.C. when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co-defendant. But for application of this doctrine between co-defendants four con- ditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. Ibis is the settled law as held in SM. Sadat Ali Khan v. Mirza Wiquar Ali, AIR 1943 PC 115, Shashibushan Prasad Mishra v. Babuji Rai & Ors., 1969 (2) SCR 971; and Iftikhar Ahmed & Ors. v. Syed Meharban Ali, 1974 (2) SCC 151. Take for instance that if in a suit by 'A' against 'B & C', die matter is directly and substantially in issue between B & C, and an adjudication upon that matter was necessary to determine the suit to grant relief to 'A'; the adjudication would operate as res judicata in a subsequent suit between B & C in which either of them is plaintiff and the other defendant. in other words, if a plaintiff cannot get at his right without trying and deciding a can between co-defendants, the court will try and decide the case, and the co-defendants will be, bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co- defendants, the codefendants will not be bound as between each other.
Supreme Court of India Cites 0 - Cited by 22 - R S Bachawat - Full Document
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