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IN THE HIGH COURT OF BOMBAY
Bavdekar and Chainani H.K. , JJ.
Appellants: Rangappa Kelavadeppa
Vs.
Respondent: Rindawa and Vasangouda
Second Appeal No. 1378 of 1949
Decided On: 08.01.1953
Counsels:
For Appellant/Petitioner/Plaintiff: G.P. Murdeshwar, Adv.
For Respondents/Defendant: H.F.M. Reddy, Adv.
RES JUDICATA - EXECUTION PROCEEDINGS - REPRESENTATION - WILL - GENUINENESS - ADJUDICATION - BAR TO SUBSEQUENT SUIT - SECTION 47(3), CIVIL PROCEDURE CODE, 1908.
Fact of the Case:
Plaintiff, claiming to be the adopted son of Kelvadeppa, filed a suit for recovery of possession of all the properties left by Kelvadeppa, upon the footing that he was the adopted son of Kelvadeppa, and the will, which had been propounded by Rindawa, was not a genuine one. Rindawa claimed, among other things, that the agitation of the question as to whether the will was genuine was barred by the adjudication in the earlier execution proceedings.
Finding of the Court:
The decision of the executing Court that the will was genuine and valid and that Rindawa was the legal representative of Kelvadeppa was binding on the parties to the execution proceedings, or their representatives. The question whether the will relied upon by Rindawa was genuine and was the last will of Kelvadeppa and whether consequently Rindawa was the legal representative of Kelvadeppa arose between Rindawa on the one hand and all the judgment-debtors on the other. The dispute was not fought out only between Rindawa and the present plaintiff in his capacity as the adopted son of Kelvadeppa. It was also fought out between Rindawa and all the judgment-debtors, the present plaintiff being judgment-debtor No. 4. Both the parties had an opportunity to lead evidence on the matters in dispute.
Issues: 1. Whether the decision of the executing Court that the will was genuine and valid and that Rindawa was the legal representative of Kelvadeppa was binding on the parties to the execution proceedings, or their representatives? 2. Whether the question whether the will relied upon by Rindawa was genuine and was the last will of Kelvadeppa and whether consequently Rindawa was the legal representative of Kelvadeppa arose between Rindawa on the one hand and all the judgment-debtors on the other?
Ratio Decidendi: 1. A determination in execution proceedings can operate as res judicata in a subsequent suit between the same parties. 2. The words "for the purposes of this section" in Section 47(3), Civil Procedure Code, 1908, mean "for the purposes of determining the questions referred to in Sub-section (1)", that is, all questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree. 3. The decision of the Court will no doubt decide the question as to who is the representative of a party for the purposes of the proceedings before it, but this decision will have the same effect as its decision on any other question, and would be binding on the parties to the execution proceedings, or their representatives.
Final Decision: Appeal dismissed.
1. This is a second appeal arising from a suit filed by one Rangappa, who claims to be the adopted son of one Kelvadeppa. It appears that this Kelvadeppa had obtained a decree against Venkappa, the father of the plaintiff Rangappa, Rangappa himself and three other sons of Venkappa. The decree was for partition and separate possession of two properties situated in the Badami taluka of the Bijapur District. Kelvadeppa died after filing an application for execution of the decree, and a question arose as to whether his sister, the defendant Rindawa, was entitled to be brought on the record as his legal representative for the purpose of carrying on execution. Rindawa claimed under a will left by her brother; but the genuineness of this will was denied by all the four defendants-judgment-debtors. The question was then tried, and it was held by the executing Court that the will was a genuine one. It appears that the execution proceedings were then carried on by Rindawa.
2. Subsequently the plaintiff filed the suit, from which the present second appeal arises, for recovery of possession of all the properties left by Kelvadeppa, upon the footing that he was the adopted son of Kelvadeppa, and the will, which had been propounded by Rindawa, was not a genuine one. Rindawa claimed, among other things, that the agitation of the question as to whether the will was genuine was barred by the adjudication in the earlier execution proceedings. She has succeeded upon this point in both the lower Courts, and the only question in the present appeal is as to whether there was such a bar of res judicata,
3. The bar under Section 47 (3) has also been mentioned, and it would be convenient to dispose of it in a few words. Now Section 47 (3) says that where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. The words "for the purposes of this section" make it quite clear that agitation of the same question is not barred for purposes other than those of Section 47, because of the provisions of Section 47(3). Otherwise, there could be no point in the Legislature using the words "for the purposes of this section". We do not intend to suggest that when any such question as falls within the purview of Section 47(3) arises, a separate suit for the agitation of the same question is always permissible. But the Sub-section itself does not bar the agitation of the question, which is determined under the provisions of that Sub-section only for the purpose of Section 47, in subsequent suits. The agitation of such questions by a separate suit is barred when the question arises between parties to the suit in execution proceedings and relates to execution, satisfaction or discharge of the decree. Its agitation in subsequent suits may be barred, for example, under Section 11 of the Code of Civil Procedure or upon general principles of res judicata, their Lordships of the Privy Council having laid down that Section 11 is not exhaustive. But Section 47(3) itself does not bar the agitation of the question in a subsequent suit.
4. Now, in order that the bar under Section 11 could arise, there must be a determination of the issue which arises at the moment in a former suit between the same parties litigating under the same title and in a Court competent to try the subsequent suit. It can hardly be disputed that the earlier proceedings were between the same parties, or that they were between parties, who were litigating under the same title, or that the Court, which determined the question, had competency to try the subsequent suit. It is quite true that the plaintiff in this case also claimed to be the adopted son of Kelvadeppa; but it is not as if it is only in that capacity that he raised the contention in the execution proceedings. If we look at the judgment, which has been brought on the record, we find that all the four judgment-debt
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