1959 Supreme(Pat) 83

PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Baidyanath Rai
Versus
Satyanarain Rai
Letter Patent Appeal No. 1 of 1953 ;
Decided On : JULY 31, 1959

A compromise in a miscellaneous case can estop the plaintiffs from challenging the validity of an attachment before judgment.

Headnote:

ATTACHMENT BEFORE JUDGMENT - VALIDITY - ESTOPPEL - RES JUDICATA - ATTACHMENT BEFORE JUDGMENT IN MONEY SUIT - VALIDITY - COMPROMISE IN MISCELLANEOUS CASE - ESTOPPEL - RES JUDICATA - TITLE BASED ON ATTACHMENT - IDENTITY.

Fact of the Case:

The plaintiffs purchased three tenures from Silanath Jha by a registered deed of sale dated 7-2-1933. Before this purchase, these three tenures were subject of attachment before judgment in Money Suit No. 20 of 1931 instituted by Bansman Rai against Silanath Jha. Bansman Rai obtained a decree in the money suit and the attachment before judgment was made absolute. Bansman Rai levied execution and the three tenures were advertised for sale without fresh attachment and were purchased by the decree holder himself at auction sale on 1-5-1933. The plaintiffs filed an application under Order 21 rule 90 of the Code of Civil Procedure for setting aside the auction sale on the grounds, inter alia, that the writ of attachment was not properly served. A compromise was effected therein between the parties on 18-11-1.933, by which Banlchandi agreed to satisfy the decretal dues in two instalments, when the sale was to be set aside; if not, the sale was to be confirmed. Bankhandi made default, with the result that the sale was eventually confirmed on 29-5-1934. Thereafter, Bailsman, the decree-holder, auction-purchaser, obtained delivery of possession of the disputed properties through Court on 15-6-1934. Before the sale of date 7-2-1933 in favour of the plaintiffs but after the attachment before judgment on 24-2-1931, Darbhanga Raj, the superior landlord, ignoring the previous purchases, instituted Rent Suit No. 2235 of 1932 against the original tenure-holder, Silanath and his sons, in respect of khata No. 24 obtained a decree and in execution of it the said tenure was put up for sale on 10-1-1934 and purchased by Bankhandi benami in the name of his son Satyanarain. Satya-narain took delivery of possession of the khewat on 10.-2-1936 dispossessing Bansman and others, including one Jagianand and Kausalya Dai, a daughter of Bansman. The last two had taken transfer of portions of the khewat previously. Bansman and his sons instituted Title Suit No. 61 of 1937 against Bankhandi and his sons and heirs for a declaration of their title and possession on the grounds that the decree obtained by Darbhanga Raj was a money decree, that the execution which followed was a money execution and the auction sale was a money sale and that consequently their purchase at auction being prior in time by reason of the previous attachment before judgment prevailed over the defendants purchase and their title, therefore, remained intact and unaffected by the subsequent purchase of the defendants. The trial Court held that the decree obtained by the Darbhanga Raj was a money decree and the execution a money execution. That being so the interests of the plaintiffs were not affected, but notwithstanding these findings, it dismissed the plaintiffs" suit on the ground that the attachment before judgment in Money Suit No. 20 of 1931 at the instance of Bansman was invalid and consequently his title could not prevail over that of Bankhandi who had taken a kebala prior to their purchase at the auction sale. An appeal against the judgment and decree by the descendants of Bansmam failed. Thus Bankhandis title with respect to khewat No. 24 was upheld. The sons and widow of Bankhandi commenced the present action on 30-4-1945 with respect to the remaining two tenures, namely, Survey Khewat No. 1 in village Bathaili Debi Jagir and Survey Khewat No. 1 in village Kamalpur Jagir. They have prayed for declaration of title and recovery of possession, substantially on the ground that the attachment before judgment in Money Suit No. 20 of 1931 was illegal and ineffective, that it did not affect their title to the disputed lands and that consequently the purchase of the disputed lands by their ancestors, being prior in time would have precedence over that of Bansman, the ancestor of the defendants first party.

Finding of the Court:

The attachment before judgment was valid and proper, that by virtue of the compromise in the miscellaneous case Bankhandi waived all objections to the sale as well as the attachment and accepted the position that the question of title as between Bansman and Bankhandi had been set at rest. As regards res judicata he held that since the previous suit related to a different item of property and was tried by a Court which was not competent to try the present suit having regard to the pecuniary jurisdiction, the plea of res judicata was not available to the plaintiffs. He held further that the plaintiffs purchase was subsequent to the order of attachment and as such it can have no priority over the title of Bansman of his heirs. On these findings he dismissed the suit. On appeal, the learned Additional District Judge concurred with the learned Subordinate Judge that the decision on the attachment in Title Suit No. 61 of 1937 did not operate as res judicata, but for different reasons. He was of the opinion that this question was not directly and substantially in issue in the previous suit and no issue was framed to that effect. According to him, *his question arose in that suit only collaterally or incidentally. He further held that the attachment was invalid but expressed the view that the compromise in the miscellaneous case debarred the plaintiffs from challenging the validity of the attachment. He held, therefore, that the plaintiffs were precluded from challenging the rights of Bansman or his heirs with regard to the disputed property and accordingly affirmed the decision of the learned Subordinate Judge. On appeal to this Court, the learned Single Judge upheld the findings of the Courts below that the decision in Title Suit No. 61 of 1937 with regard to attachment did not operate as res judicata between the parties. He further, affirmed the finding of the lower appellate Court that the attachment was invalid. He, however, differed from the Courts below on the question of estoppel and held that the compromise in the miscellaneous case did not estop the plaintiffs from challenging the title of the defendants with regard to the property in suit. As, in his opinion, there was no proper attachment and the compromise did not operate as) estoppel, he reached the conclusion that the sale (feed in favour of the ancestors of the plaintiffs dated 7-2-1933 had precedence over the auction sale on 1-5-1933 in favour of the ancestors of the defendants. Accordingly, he set aside the judgments and decrees of the Courts below and decreed the plaintiffs suit with costs throughout.

Issues: 1. Whether the attachment before judgment in Money Suit No. 20 of 1931 was valid and proper? 2. Whether the compromise in the miscellaneous case estopped the plaintiffs from challenging the validity of the attachment? 3. Whether the decision in Title Suit No. 61 of 1937 operated as res judicata between the parties?

Ratio Decidendi: 1. The attachment before judgment was valid and proper. 2. The compromise in the miscellaneous case estopped the plaintiffs from challenging the validity of the attachment. 3. The decision in Title Suit No. 61 of 1937 did not operate as res judicata between the parties.

Final Decision: The appeal is allowed with costs and the suit is dismissed with costs throughout.