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1892 Supreme(SC) 16
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MORRIS, LORD HANNEN, SIR RICHARD COUCH, AND LORD SHAND.
KAMESWAR PERSHAD - Appellant
Versus
RAJKUMARI RUTTUN KOER - Respondents
On Appeal from the High Court in Bengal.
Decided On : June. 21. 1892.
Solicitors for Appellant:T. L. Wilson & Co. Solicitor for first-named Respondent: S. G. Stevens.
A suit is barred by res judicata if the ground of attack "might and ought" to have been raised in a previous suit between the same parties. Additionally, the limitation period for a debt is six years unless it is a binding charge on immovable property.
Headnote:(A) Act XV of 1877 - Articles 10, 122, 132 - Limitation - Suit for recovery of bond debt - Period of limitation for a personal debt is six years, whereas for a charge on immovable property, it is twelve years - If the charge is not binding upon the estate, the shorter period of six years applies.
(B) Code of Civil Procedure, 1882 - Section 13, Explanation 2 - Res Judicata - Any matter which might and ought to have been made a ground of attack in a former suit between the same parties is deemed to have been a matter directly and substantially in issue - Where a party is joined in a previous suit and a personal liability could have been alleged based on an agreement, failure to do so bars a subsequent suit on the same ground.
(C) Code of Civil Procedure, 1882 - Application - The Code applies to suits tried after its passing, even if the circumstances giving rise to the suit occurred previously, as it codifies existing law to prevent continuous litigation on the same subject-matter.
Facts of the case:
A widow executed a bond and hypothecated certain properties. Subsequently, she entered into an agreement surrendering her interest in the estate to a third party on the condition that the third party would pay off her liabilities. The creditor first sued both the widow and the third party, resulting in a decree holding the widow personally liable but finding the mortgage not binding on the estate. Years later, the creditor filed a second suit against the third party to enforce the personal liability arising from the agreement to satisfy the widow's decree.
Findings of Court:
The suit was barred by limitation as the debt was personal and not a binding charge on the estate, making the limitation period six years instead of twelve. Furthermore, the suit was barred by res judicata because the personal liability of the third party under the agreement could and ought to have been raised in the first suit.
Issues: Whether the suit to declare the defendant liable to satisfy a decree on a bond was barred by the law of limitation or by the principle of res judicata.
Ratio Decidendi: The court held that since the charge on the estate was not binding, the six-year limitation period for personal debts applied. Regarding res judicata, the court reasoned that the personal liability under the agreement was an alternative ground of attack that ought to have been raised in the initial litigation between the same parties, and thus is deemed to have been decided.
Result: Appeal dismissed.
APPEAL from a decree of the High Court (May 8, 1889) reversing a decree of the Sub-Judge of Gya (Feb. 23, 1888).
The question in appeal was, Is the Appellants suit to have the Defendant, Run Bahadoor, declared liable to satisfy a decree on a bond, dated the 1st of March, 1872, executed by Ranee Asmedh Koer, barred either by limitation or as res judicata?
The facts are stated in the judgment of their Lordships.
Cowie, Q.C., and C. W. Arathoon, for the Appellant, contended, first, that the suit was not barred by limitation. The bond debt was a charge on the immoveable estate, Rajah Run Bahadoor having specifically undertaken to pay it " out of the profits of the said properties." Reference was made to Act XV. of 1877, arts. 10, 122, 132. The suit fell under art. 132, and not under art. 116 or any article in Part VII. giving six years. Run Bahadoor s liability resulted from his agreement with Rani Asmedh, made upon his taking over the estate on which it was or became charged within the meaning of art. 132. Article 122 applied in view of the suit being based on the decree of the High Court against the Ranee, dated the 2nd of July, 1878. With regard to res judicata, some part of the money secured by the decree sought to be executed has been admitted and found to be payable by the Defendant, and accordingly this suit as to the balance is not barred. Besides, there was no decision that the rights under the ikrar were not effective against the immoveable estate of the Rani in the Defendants hands; but only that the bond debt of the Rani was not so chargeable. [Sir R. Couch —It is the same cause of action in both suits, and you joined both of them, the widow and Run Bahadoor, and could have raised your present contention in that suit.] See sect. 2 of 1859 and sect. 13 of Act X. of 1877. The cause of action is not the same as in 1876. That former suit was not under any liability personally created by the Defendant Run Bahadoor, but because he had got into possession of the immoveables under the ikrar. Its object was to render the corpus of the estate chargeable, founded on the ikrarnamah. This suit is to enforce his personal liability, which was not in question in the former one, under his agreement with the Rani to satisfy the decree against the Rani. See Act X. of 1877, sects. 42 and 43, as to framing a suit. Reference was made to Woomatara Debia v. Unnopoorna Dossee (11 Beng. L. R. 158.); Denobhundoo Chowdhry v. Kristomonee Dossee (Ind. L. R. 2 Calc. 152.) ; The Shivagunga Case (11 Moores Ind. Ap. Ca. 50, 61.).
Doyne, for the Respondent Rajkumari, was not heard.
The judgment of their Lordships was delivered by
LORD MORRIS—
The facts, which it may be necessary briefly to recapitulate in order to make clear the grounds upon which their Lordships are about to decide this case, are as follows Ranee Asmedh Koer was the senior widow of Rajah Modhnarain Singh, and as such was entitled to a widows interest in certain mouzahs, part of the pro perty of her deceased husband. She appears to have incurred debts to the Appellant, and on the 1st of March, 1872, she executed a bond to him for the sum of Rs. 61,000, to meet the amount of her liability, and thereby hypothecated the mouzahs. On the 31st of August, 1872, an agreement was entered into between her and Run Bahadoor whereby she surrendered her interest in her husbands estate to Run Bahadoor, upon condition that he was to pay her an allowance of Rs. 24,000 for her maintenance, and was to pay off her liabilities. On the 31st of March, 1876, the Appellant instituted a suit on the bond against the Rani and Run Bahadoor, which was decreed by the Subordinate Judge on the 6th of December, 187G, in the terms of the prayer. The High Court varied this decree, and by their decree of the 2nd of July, 1878, held the Rani personally liable for the amount covered by the bond with interest thereon, and held the mortgage not to be binding upon the estate. The matter was brought before this Board b
