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or conveyance. In the opinion of their Lordships, there is no foundation
in principle or authority for any such distinction, but the person who
comes here as the plaintiff, and who is the respondent in this case, must
stand in the same position as the son, Bahadur, whose rights he bought
would have stood in if he had been the claimant. "

It is therefore clear that the plaintiff-appellant is as much bound by
the terms of the decree of the 27th January 1883, in respect of the pro-
perty which be has purchased as Balkisban himself would have been, and
cannot therefore prevent the property from being sold under that decree
except by paying up the decretal money.

For these reasons I agree with my brother, Young, in dismissing the
appeal with costs.
Appeal dismissed (6).

U) 8 B.H.C.R, 75 A.C. ~ (2) 6 B. 19. (3) 6 B, 538, (4) 21 W7R. 148.
(5) 12M.I.A. 366.

(6) Bee nlso Cooling v. Saravana (12 M. 69), Golla Chinna Gurucuppa Naidu v.
Kail Appiah Naidu (4 M.H.C.K. 434), Bapuji. Balal v. Sai^a Bhama Bai (6 B.
490), Sadagcpa Chariyar v. Ruthna Mudali (5 M.H.O.E. 457), Chetti Gaundanv.
Sundaram Pillai (2 M.H.O.R. 61), Lakshmandas Sarvpchand v. Dasrat (6 B. 168).

32



VII] RADHA PR AS AD SINGH V. LAL SAHIB RAI 13 All. 55

13 A. 53 (P.C.) = 17 I.A. 150 = 5 Sar, P.C.J. 600,

[53] PEIVY COUNCIL. JULY 12 .

PRESENT: p T

Lord Watson, Sir B. Peacock, and Sir R. Couch. COUNCIL.

[On appeal from the High Court for the North-Western Provinces.]

131. 53

RADHA PRASAD SINGH (Defendant) v. LAL SAHIB EAI AND

OTHERS (Plaintiffs). [12bh July, 1890.] 17 I.*. II

5 Sar,

Civil Procedure Code ss. 13, 43 Res judioata Ascertainment of a defendant's liability egg
by an operative decree after the declaration of his general liability in a prior decree
Eis death in the interval between such decrees and effect in execution of his
representatives not being parties to the operative one Mesne profits Parties
Non-joinder.

The dismissal of a suit to set aside an order made in one district, for the
sale of the plaintiff's interest in property therein, is not a bar under ss. 13 and
43, Civil Procedure, to another suit to obtain relief against an order in another
district for the sale of property therein belonging to the same plaintiff, or of
other property not included in the order or sale against which the dismissed
suit was directed.

An operative decree, obtained after the death of a defendant, ascertaining for
the first time, the extent and quality of his liability, the latter having been
already declared in general terms in a prior decree, cannot bind the representa-
tives of the deceased, unless they were made parties to the suit in which such
ascertainment was pronounced.

The question of the amount of mense profits due, they having been decreed
together with the possession of land in 1856, agaiust a body of village proprietors
was not decided till 1877. In that year an operative decree was made against the
village proprietors whose names appeared as defendants in the suit of 1856, and
in 1881 execution proceedings were taken against the present plaintifis, attribut-
ing to them the character of heirs of the original judgment-debtors.

Held, that the right to execute for mesne profits was not wholly dependent
upon whether or not the ancestor of the present plaintiffs had been a party to the
decree of 1856, which did not ascertain the amount of the profits, or determine
whether the then defendants were liable jointly or severally, in respect of the
wrongful possession.

Before the issue of a money-decree which was capable of being put into execu-
tion, the alleged ancestor of the present plaintifis was dead, and the latter, not
having been parties to that decree, were not liable under it (1).

[R., 16 A. 390 = 14 A.W.N. 131 ; 21 A. 316 (317) = 19 A.W.N. 101 ; 25 A. 385 (387) = 23
A.W.N. 80 ;24 B. 251 (F.B.) ; 19 C. 132 (137) (F.B.) ; 33 C. 867 (876) = 4 C.L.J.
141 ; 33 M. 78 (79) = 4 I.C. 1040 (1041) = 6 M.L.I 1 . 187 ; 39 0. 220 = 16 C.W.N. 109
(113) ; 25 M. 244 (296) = 11 Ind. Gas. 939 (940) J 10 C.W.N. 40 (42) ; 13 M.L.T. 79
(87) = (1913) M.W.N, 114 (121) = 24 M.L.J. 96 (104) ; 5 Ind. Gas. 325 (329) ; 18
Ind, Gas. 586 (591).]

[54] CONSOLIDATED appeal from two decrees (4th May 1887) of the
High Court, one of which reversed a decree (21st July 1885) of the
Subordinate Judge of Ghazipur and decreed the claim of the present
respondent. The other dismissed a cross appeal preferred by this
appellant GO the High Court.

The plaintiffs, in the suit out of which this appeal arose, and their
predecessors-in-estate, were pattidars of village Narhi, in the Ghazipur
district, their village having originally comprised mauza Umarpur, which,
abouc the year 1840, was cut away from Narhi by the river Ganges,

(1) 8. 255 of AotX of 1877 (30th Marohl877) enacted that if the decree be for mesne
profits or any other matter, the amount of which in money is to be subsequently de-
termined, the property of the judgment-debtor may, before the amount due from him
under the decree has been ascertained, be attached as in the case of an ordinary decree
for money.

33

A VII-5



13 All. 35



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

JULY 12.

PRIVY

< COUNCIL,

-

( ' ^~"
' p r 7
BOO



re-appearing gome years after as diyara, or alluvial land, on the opposite,
or Shahabad, side of the river. The defendant was the Maharaja Eadha
Prasad Singh, the proprietor of taluk Majhariya, in the Shahabad district.
The litigation which took place about Umarpur diyara, between the defend-
ant's father and the proprietors of Narhi, 264 in number, is stated in the
judgment of the Sadar Diwani Adalat of 29th November 1759, reported
in the S. D. A. reports for that year. The result was a decree in favour
of the Maharaja, for the possession, with mense profits, of about 1,589
bigbas and he obtained possession in 1874. Meantime, an order of the
Government had placed Umarpur diyara within the jurisdiction of the
Shahabad district. On the 1st March 1877 a decree was made by the
Shahabad Court fixing the amount of mense profits and costs at
Ks. 10,69,667, to satisfy which, an order was made in June 1878, also by
the Shahabad Court for the attachment of the interest of the decree-debtors
in Umarpur. On the 23rd June 1880, the present respondents filed their
plaint against this appellant (who had succeeded his father as talukdar) in
the Court of the Subordinate Judge of Shababad to have set aside the sale
of their share in Umarpur. on the ground that neither they, nor any of
their ancestors were judgment-debtors in the decree held by the Maharaja.
On the 21st July 1881, the Subordinate Judge dismissed that suit, with
costs on grounds which he stated thus :

" The case having come on to-day, an application has been made
that the plaintiffs being residents of another district on the other
side of the river could not attend, for what reason it was not
[55] known, and it prayed for one month's time, and for the appointment
of another date. This is not a sufficient cause. Two weeks have passed
since the framing of the issues and the plaintiff's have done nothing
towards the conduct of their case. Now one month's time cannot
be allowed. The case should be dismissed for want of evidence."

The case having thus terminated in Sbahabad, afterwards, on the
10th March 1881, the District Judge of Gbazipur made an order, on the
application of the Maharaja, for execution of the decree of 1877, by attach-
ment of lands in Narhi. Objections having been disallowed, the plaintiffs
in this suit, describing themselves as " sons of Jaiparkash," who, in fact,
were the sons of Jhanguri, brought this suic on 3rd March 1882. They
claimed to be entitled as village shareholders to shares in Narhi, asli and
dakhili valued at Rs. 74,888, alleging that neither they nor their ancestors
were liable for the mesna profits. The Maharaja's defence was that they
were. Execution proceedings bad all along been takan against Jhanguri
Rai, son of Achraj, as well as other proprietors ; and it was contended that
it was Jhanguri's son, Jaiparkash, whom the plaintiffs represented. The
defence also relied on the dismissal of the suit which had been brought
in 1882 in the Shahabad Court as barring this suit ; and on this latter
ground the suit was, in the first instance, dismissed by the Subordinate
Judge of Ghazipur, whose decree, however, was ou appeal reversed by the
High Court, the suit being remanded for hearing on the merits.

On that remand the first Court held that the respondents' " ancestor"
or grandfather, Jhanguri, had been a defendant in this suit in which this
appellant's decree had bean obtained, and that, therefore, his share of one
moiety of the properties in suit was liable to be sold in execution of that
decree, but that the other half, which under Hindu law belonged to the
respondents as grandsons for Jhanguri, was not so liable ; and the first
Court, accordingly, gave the respondents a decree for the latter half, and

34



VII] RADHA PRASAD SINGH V. LAL SAHIB BAI 13 AIL 57

declared the other half liable to sale in execution of this appellant's 1890
decree. JUDY 12;

[56] Against that decree an appeal and cross appeal were preferred,
on which the High Court remanded the suit for the determination and report PRIVY
of the first Court on three issues which were sent down for the purpose COUNCIL*
of ascertaining more perfectly whether Jhanguri, the respondent's grand-
father, was a defendant in the suit, and whether process was served on
him, and whether he or his son, Jaiparkash, the respondents' father, or the < p - c -)
respondents were parties, at any time, and when, to the excution
proceedings prior to the 12th July 1874, the date on which possession s Sar- p - c - <J
was obtained by this appellant of the decreed lands in respect of which
the mesue profits were demanded.

On this remand, the first Court took further evidence, and reported
that it was shown that Jhanguri, the respondent's grandfather, was at
the time of the institution of the suit in which this appellant's decree was
obtained, a co-parcener, and in possession of the lands decreed; but that
this appellant, on whom the High Court had cast the burden of proof, had
not satisfactorily shown that any process issued to Jhanguri in that
suit, or that any proceedings in execution had been taken against the
respondents, or their ancestor, before the 1st of March 1881.

Objections and cross-objections were taken to this report, which was
returned to the High Court, and the case was re-argued.

The judgment of the High Court, delivered by STRAIGHT, J.,
concluded thus:

" To sum the matter up, it comes to this, that the defendant says
because there was a mention of the name of Jhanguri, who had a share
in this particular village in the year 1856, and because all the co-sharers
must be presumed to have been cited in that suit, and because a Jhanguri
appears in the decree and in the subsequent execution proceedings, there-
fore it must be presumed that that Jhanguri is the grandfather of the
present plaintiffs. On the other side, the plaintiffs say, and I think with
justice, that it is by no means clear that Jhanguri was in existence in theyear
1856 ; there is no proof that he was served with process in that suit before
the decree was passed, or that he was subsequently made a party to any
[57] proceedings in execution of the decree and in this respect the con-
tention is supported more or less by the absence from the decree of any
parentage of Jhanguri, and the same remark applies to the execution pro-
ceedings, so that under these circumstances it does seem to me to be
asking us to take a leap in the dark to come to the conclusion upon such
materials that this particular Jhanguri whose name appeared in that
decree must necessarily be the Jhanguri the granfather of the plaintiffs
in the present suit. It was urged for the defendant that by the name of
Jhanguri appearing in or being mixed up with the names of the other
members of the family who were cited in this suit, it must follow that he
was the Jhanguri the ancestor of the plaintiffs. I confess it would be going
a great deal too far, where there are so many Jhanguris appearing in the
decree, and so many repetitions of other names, to come to the con-
clusion that he was the person the defendant says he was. I think I have
said sufficient to explain why I think that there is no clear, satisfactory,
or convincing proof which would warrant me in allowing the defendant
to proceed with the execution of the decree against the property which
is now in the possession of the present plaintiffs."

The decree of the High Court was accordingly in favour of the
plaintiffs.

35



13 All. 58 INDIAN DECISIONS, NEW SERIES [Yol.

1890 Mr. R. V. Doyne, and Mr. J. D. Mayne, for the appellant, referred

JULY 13. to the decision of the Subordinate Judge of Shahabad of 21st July 1881,
dismissing the plaintiffs' suit in that Court ; and they referred to ss. 13,
PRIVY explanation 4, and 43 of the Civil Procedure. They also adverted to the
COUNCIL, evidence relating to Jhanguri having been a party to the decree of 14th
April 1856. They contended that he had remained a pattidar and co-
parcener of Narhi, and that the entire interest of the plaintiffs in their
( p - c -) = ancestral lands was liable to attachment in execution of the decree.
17 I.A. 150= ]y[ r j (3 m feaw, Q.C., and Mr. H, Gowell for the respondents, argued
3 Bar. P.C.J. j.^^ ^ey were not affected by the decree of 1856 or bound by any
*"'"' of the proceedings taken under it. The proceedings taken by the
defendant on the 1st March 1881 were not preceded by [58] any judicial
finding that the present plaintiff represented the real judgment-debtors.
The decision of the Shahabad Court had determined none of the issues
in the present case and did not constitute res judicata.
Mr. B. V. Doyne replied.
Their Lordships' judgment was delivered by LORD WATSON.

JUDGMENT.

LORD WATSON. The suit in which these consolidated appeals are
taken was instituted by Lai Sahab Bai and others, the respondents,
before the Subordinate Judge of Ghazipur in March 1882, for the purpose
of obtaining relief against the attachment and sale, at the instance of the
Maharaja Eadha Prasad Singh, the appellant, of certain shares of
immoveable estate in taluka Narhi and elsewhere, in satisfaction of a
judgment-debt alleged to be due from their ancestor Jhanguri Eai. The
respondents are the six sons of Jaipargash, the only son of Jhanguri, who
was one of the five sons of Achraj Eai, a pattidar of Narhif and the
shares sold in execution by the appellant were the ancestral property of
the respondents, being cue-fifth of the interest which belonged to their
great-grandfather, Achraj Eai.

In Order to appreciate the relative position of the litigants and the
merits of the controversy raised by these appeals, it is necessary to revert
to the legal proceedings in which the decrees were obtained which formed
the warrant for the attachment and sale against which relief is sought.

Taluk Majharya, now belonging to the appellant, and taluk Narhi,
already mentioned, are situated on opposite banks of the Ganges, Majharya
being on the Shahabad and Narbi on the Ghazipur side of the river.
Disputes arose between the proprietors of these two taluks with respect
to the ownership of 1,589 bighas of alluvial land which had been deposited
by the action of the river on its Shahabad side, the proprietors of Narhi,
who appear to have been in possession, alleging that the disputed land was
a re-formation upon a denuded area which originally formed part of their
f.aluk. Consequently the Maharaja Bukhsh Singh, father and imme-
[59]diate predecessor of the appellant, brought, in 1855, an action against
264 defendants pattidars of Narhi, before the Civil Court of Ghazipur for
recovery of the disputed bighas and for mesne profits. The judicial record
of that action perished in the Mutiny, but copies of the written statement
lodged for 57 pattidars who appeared to defend, of their petition for leave
to file documents, and of the ultimate decree passed by the Civil Judge of
Ghazipur, have been produced and admitted without objection in this suit.

The decree, which is dated the 14th April 1856, assigned the disputed
land to the Maharaja, and fixed its boundaries ; and also found that he was
" entitled to mesne profits from the date of the Deputy Collector's order

36



VII] RADHA PR AS AD SINGH V. LAL SAHIB BAI 13 All. 60

until he recovers possession." An appeal was taken by some of the defend- 1890
ants to the Sadar Court, who, on the 29fch November 1859, varied the JULY 12.

boundaries fixed by the Subordinate Judge favourably to the defendants,

and directed " that mesne profits be adjusted accordingly." The Maha- PRIVY
raja presented a petition for review, upon which the Sadar Court on the COUNCIL.

27th April i860 mondified its previous decisionjwith respect to boundaries.in

his favour. An appeal was then taken by the defendants to this Board, 18 A - W
which was dismissed on the 31st March 1870 for want of prosecution. It (P.C.) =
is unnecessary to notice further these proceedings by way of appeal, be- 17 '* 180
cause the decrees pronounced in them had raference merely to the extent & Sar. P.O. J.
of the land which the Maharaja was entitled to recover, and did not 6
disturb the general finding of the Subordinate Judge of Ghazipur in regard
to mesne profits.

It having been judicially determined that the disputed land formed
part of taluk Majharya, the action was, after the dismissal of the appeal
to this Board, transferred to the Court of Shahabad, the district in which
that taluk is situated. In 1874 the Maharaja was put in possession of
the land in pursuance of the decree of the Sadar Court ; but the question of
mesne profits was not finally disposed of until 1877. On the 1st March
1877, the Subordinate Judge issued an order, which has become final, fixing
the amount of mesne profits and costs due to the appellants as successor
of the Maharaja at Rs. 10,69,667, for which he gave decree jointly against
[60] all the parties whose names then appeared as defendants to the
action.

In June 1878 an order issued from the Shahabad Court for attach-
ment of the interests of the judgment-debtors in mahal Umarpur, in
satisfaction of these mesne profits and costs of suit. In the course of
the proceedings the respondents applied to have a 2 ganda 2 kauri 2i dant
share which they alleged to belong to them, struck out of the inventory,
but their objection was overruled, and the property sold in execution.
The respondents then brought a regular suit for relief against the
attachment and sale, in which they alleged that their share of the mahal
was ancestral property, and that neither they nor their ancestors
were judgment-debtors in the decree executed, or in anyway liable
under it. The suit was resisted by the appellant, on the grounds that
the respondents had no interests in Umarpur, and that they were not
the respresentatives of Jhanguri and Jaipargash. After adjustment of
issues the action was dismissed with costs, on the 21st July 1881,
because of the respondent's failure to adduce evidence in support of their
allegations ; and the respondents took no steps to set aside that order,
which has consequently become final. It would hardly have been neces-
sary to refer to these proceedings in execution, had it not been for the
fact that the appellant relies upon them as constituting res judicata in
the present suit. (

On the 1st March 1881, the appellant instituted proceedings for
execution in the Court of Ghazipur against property of the judgment-
debtors situated in that district, stating in his application (1) the names of
the judgment-debtors, and (2) the names of those against whom his decree
was sought to be executed. Amongst the former there occurs the name of
"Chakauri Rai," which is synonymous with "Jhanguri Rai," and amongst
the latter the names of all the respondents, who are described as "sons
of Jaipargash Rai, deceased, heirs of Chakauri Rai, grandson of " Achraj
Rai," So that in these proceedings the appellant rightly attributed to the
respondents the character of the heirs of Jhanguri and Jaipargash, which he

37



13 All. 61 INDIAN DECISIONS, NEW SERIES [Yol.

1890 denied that they possessed in bis previous execution suit. The respondents

JULY 12, [61] lodged objections, praying for release of their interest on the ground

that it belonged to them," and they were in possession thereof, and the

PRIVY judgment-debtors had no concern with it " but these objections were

COUNCIL, repelled by the Subordinate Judge of Ghazipur, on the 10th March 1881,

in respect of their having been once before raised by the same persons in

13 A. S3 liijQ Court of the Sub-Judge of Shahabad and were disallowed.
(P.C.)= Q D jjjjg 3 r( j M arc h 1882 the respondents brought the present suit,

17 I. A. 150= j n w hich there has been an unusual amount of litigation. Their cause
a Bar. P.C.J, of action is thus stated in the plaint : - " The judgment-debtors have no
B *' 0i connection or concern with this property, nor are the plaintiffs or their
ancestors debtors under the decree under execution." In his written
statement the appellant averred that the decree of 14th April 1856, and
subsequent proceedings in execution, were taken against Jhanguri
Eai and his son, Jaipargash Eai, and that these persons being judgment-
debtors, the property, being ancestral was liable to attachment for their
debt. He also pleaded that according to the provision of sections 13 and
43 of Act X of 1877, the claim put forward by the respondents was BO
longer, cognizable, inasmuch as it had already been adjudicated upon,
in a regular suit, before the District Court of Shahabad.

The cause was tried upon six issues, which need only be noticed in
so far as they relate to the main questions raised in these appeals :

" III. Is the claim of the plaintiffs barred by section 13 and 43 of
the Code of Civil Procedure ? "

" IV. Are the plaintiffs or their ancestors liable for the judgment-debt
and is the property liable to sale or not ?"

The Subordinate Judge upon the ', 21st' December 1882. sustained
the appellant's plea in bar, and dismissed the suit with costs. His
decree was carried by appeal to the Sigh Court of the North-
Western Provinces, by whom it was reversed on the 9th May 1885, and
the case remanded to the Sub-Judge for disposal on the merits. [62]
As the decision of the High Court on that occasion has been impeach-
ed in these appeals, it may be convenient to state here that, in the
opinion of their Lordships, it was well-founded. None of the questions
either of fact or law, raised by the pleading of the parties, was heard or
determined by the Judge of the Shahabad Court in 1881 ; and his decree
dismissing the suit does not constitute res judicata within the meaning of
the Civil Procedure Code. It must fall within one or other of the sections
of Chapter VII of the Code ; in the present case it is immaterial to con-
sider which, the severest penalty attached to such dismissal in any case
being that the plaintiff cannot bring another suit for the same relief.
Assuming that the respondents are barred from seeking relief against fcbe
attachment and sale of their interest in mahal Umarpur, the decree of 21st
July 1881 does not disable them from claiming relief against the attach-
ment and sale of their interest in Narhi, or in any other property which
was nob included in the judicial sale of Umarpur.

Acting under the remit made to him by the High Court, the Subordi-
nate Judge, on the 21st July 1885, foiind as matter of fact that the
respondents' ancestor, Jhanguri Eai, was defendant in the suit of 1855
and was one of the parties decerned against, as liable for mesne profits by
the judgment of the 14th April 1856. Upon that finding the learned
Judge dismissed the respondents' suit with respect to one-half of the
interests claimed by them, but sustained it with respect to the other half,
which he held to have been vested by force of Hindu law, in their father,

38



11] RADHA PRASAD SINGH V. LAL SAHIB RAI 13 All. 64

Jaipargash, who was admittedly not made a party to the proceedings of 1890
1855 and 1856 at the instance of the Maharaja. Against that decision JULY 12.

both parties appealed to the High Court, who, on the 5th August 1886,

made an order remanding the case for the trial of the following points, and PRIVY
distinct findings upon them : COUNCIL.

(1) Was Jhanguri Eai, the grandfather of the plaintiffs, a co-sharer or



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 7 of 155)