JUDGMENT
S.S. Sudhalkar, J.
1. In both the aforesaid appeals points for discussion are the same; the parties are also the same, further the facts from which these appeals arise are the same and, therefore, these appeals were heard together and are being disposed of by this common judgment.
2. The facts of the case are that respondent No. 3 Nahar Singh executed an agreement to sell on 22-9-82 in favour of respondents Nos. 1 and 2. Respondent No. 3 had received a sum of Rs. 50,000/- from respondents Nos. 1 and 3 as earnest money. On 28-2-1983, respondent No. 3 suffered a decree in favour of the appellant in civil suit No. 50 of 1983. Respondents No. 1 and 2 had filed civil suit No. 136 of 1983 against respondent No. 3 and the appellant with a prayer of specific performance of the agreement and in the alternative return of Rs. 50,000/- as principal amount and that the decree suffered by respondent No. 3 was not binding on respondents No. 1 and2. Learned Sub Judge I Class, Mansa decreed the suit in favour of respondents No. 1 and 2 for the recovery of Rs. 75,000/- along with proportionate costs. Respondents No. 1 and 2 felt satisfied with the decree and did not appeal over the same. Issue No. 5 amongst the issues framed in the suit was as under :
“5. Whether the decree suffered by defendant No. 1 in favour of defendant No. 2 dated 28-2-83 is ineffective qua the right of plaintiffs as alleged? OPP
The learned Sub Judge held that it was not possible to give finding that the decree suffered by respondent No. 3 in favour of appellant was a collusive one and that the present appellant cannot be compelled to execute a sale deed in favour of the present respondents Nos. 1 and 2. It will be proper to quote the relevant portion of the judgment as under :
“In the plaint it is the case of the plaintiffs that the decree suffered by defendant No. 1 in favour of defendant No. 2 regarding the suit land is not binding on the right of the plaintiffs. The plaintiffs have taken no pain to get proved the plaint or the written statement of the suit in which decree dated 28-2-83 was passed. The plaintiffs have also taken no pain to get exhibited certified copy of the judgment and decree sheet dated 28-2-83. Although, the plaintiff has placed on file certified copy of judgment and decree sheet dated 28-2-83, in the absence of the pleadings of the civil suit No. 50 dated 8-2-83 decided on 28-2-83 and in the absence of the certified copy of judgment and decree sheet, a finding is not possible that the decree suffered by the defendant No. 1 in favour of the defendant No. 2 is collusive one. The defendant No. 2 in such circumstances cannot be compelled to execute a sale deed in favour of the plaintiffs in terms of the agreement dated 22-9-82.”
3. The matter would have rested there so far the land in question was concerned. Respondents Nos. 1 and 2 filed execution petition for executing the decree in the above mentioned suit No. 136 of 1983. In the execution proceedings, the land in question (same land) was attached. The appellant filed objections to the attachment on 12-6-86. The learned Sub Judge I Class accepted the objection petition. This led to the filing of civil suit No. 48 of 1990 by present respondents Nos. 1 and 2.
4. Respondents Nos. 1 and 2 had also filed Civil suit No. 110 of 1986 against respondent No. 3 and present appellant challenging the judgment passed in civil suit No. 50 of 1983 contending that the decree obtained in it on 22-8-83 was a collusive decree obtained with an intention to delay the creditors and that it was null and void qua the rights of respondents Nos. 1 and 2 and that the suit land was liable to be attached and put up for auction in the execution of the decree obtained in civil suit No. 136 of 1983. The suit was dismissed vide judgment dated 8-12-1988. This led to the filing of the civil appeal No. 25 of 1989 by present respondents Nos. 1 and 2. Now the judgments in civil appeal No. 25 of 1989 and 48 of 1990 are under challenge in the present two appeals which were allowed by the lower appellate Court.
5. Before the lower appellate Court and this Court, the argument of learned counsel for the present appellant is that judgment in suit No. 136 of 1983 operates as res judicata and, therefore learned counsel for the appellant argued that the finding in the judgment quoted above cannot be challenged in the subsequent suit. He also argued that respondents Nos. 1 and 2 did not file any appeal over the said judgment. As against this learned counsel for the respondents.No. 1 and 2 has argued that by the judgment in suit No. 136 of 1983, though the specific performance was not granted but the suit was decreed in favour of present respondents No. 1 and 2 for recovery of Rs. 75,000/-and being satisfied with the decree, respondents Nos. 1 and 2 were not bound to file an appeal over it and they also did not find it necessary to file an appeal over the same and, therefore, in these peculiar circumstances, the finding in civil suit No. 136 of 1983 cannot operate as res judicata.
6. Learned counsel for the appellant has cited before me the case of Sulochana Amma v. Narayanan Nair, AIR 1994 SC 152. It is held therein that in a suit for Injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties and when the same issue is put in issue in a latter suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. He has also cited the case of Lal Chand v. Radha Kishan, AIR 1977 SC 789. It was observed therein that where the respondent landlord had obtained an ejectment decree under Delhi and Ajmer Rent Control Act, 1952 against the appellant tenant, in occupation of his building situated in a slum area, the decree holder landlord cannot, without obtaining permission of the competent authority, institute a fresh suit for eviction of the appellant tenant from the building. This citation is on different point altogether and, therefore, merits no discussion. So far as the case of Sulochna Amma (supra) is concerned the question now to be considered is if a parry has succeeded in a suit though finding on a particular issue is against it, whether that finding would operate as res judicata. As stated earlier, the case of the respondents Nos. 1 and 2 is that they had no chance to challenge the finding because the decree was in their favour. Of course the whole decree was not in their favour as prayer for specific performance was dismissed. However, the decree for money passed was in favour of respondents Nos. 1 and 2 and, therefore, when they were to get the money back, they found no reason to pursue further the prayer for specific performance in appeal.
7. As mentioned earlier, the question of res judicata would not have arisen but because of the peculiar circumstances i.e. the same property for which specific performance was earlier sought is now being attached for the execution of the money decree. Normally when an issue is decided in the suit or in the appeal over the suit, it cannot be agitated in the subsequent proceedings. Learned counsel for the respondents has argued that this principle will not apply to a case where the issue is decided against a party though the decree normally is in its favour.
8. In the case of Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1922 PC. 241 it has been held as under :
“Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them.”
The above principle is also followed in the case of Ramaswami Reddi v. Talaivasal Marudai Reddi, AIR 1924 Madras 469.
9. In the case of Mehta Jivanlal Vasantji v. The Trustees of Gayatri Mandir reported in (1965) 6 Guj LR 194 it has been held as under :
“With respect to the learned trial Judge, it must be pointed out that the learned trial Judge has completely overlooked one important aspect of the lawrelating to res judicata. It is well settled law and it is also provided in Section 11 of the Code of Civil Procedure that before any issue or any subsequent suit can be barred by res judicata the earlier matter must have been heard and finally disposed of by the Court in the earlier suit. Now, in the earlier suit at the stage of the Second Appeal before the High Court, which was disposed of by Vyas J. in 1958, the ‘Pujari’, who is the defendant in the present suit, had succeeded. Therefore, the ‘pujari’ could not have appealed to the Supreme Court or by way of Letters Patent Appeal against the findings of Vyas J. regarding the legality of the Trust or the validity of the appointment of the trustees or the validity of the rules framed by them, which points were decided by Vyas J. on merits in Second Appeal No. 153 of 1957 on January 9, 1958. Therefore, it could not be said that on those points there was any final disposal by the High Court in the earlier litigation.”
The Gujarat High Court in the aforesaid case relied on the observations in the commentaries of Sri Dinshah Mulla on the Civil Procedure Code which are as under :
“If the plaintiff’s suit is wholly dismissed, no issue decided against the defendant can operate as res judicata against him, in a subsequent suit, for the defendant cannot appeal from a finding on any such issue, the decree being wholly in his favour.”
The principle laid down in the aforesaid cases do apply to the facts of the present case also. Of course, as stated earlier, the decree for specific performance was not passed in favour of respondents Nos. 1 and 2. However, the respondents did obtain money decree and felt satisfied. These two aspects can be separated. When the respondents felt satisfied, there was no occasion for them to file any appeal to challenge the issue decided against them in the earlier suit. It will be improper to state that even when the money decree was passed in favour of the respondents, they should have appealed against the finding or against the decree rejecting specific performance.
10. Learned counsel for the respondents placed reliance on Section 53 of the Act and argued that the suit being of a representative character, will be for the benefit of all the creditors, cannot be said to have been barred by the principles of res judicata because of the finding of the issue in the earlier suit. However, as I have held earlier that the bar of res judicata is not there because of the reasons stated above, this point is not discussed.
11. In view of the above position, the arguments of learned counsel for the appellant cannot be accepted.
12. In view of the above facts and circumstances, these appeals are without merit and deserve to be dismissed.
13. In the result, both these appeals are dismissed.