Sokalingam Chetty V. Kalimuttu Chetty

1943 Present: Soertsz S.P.J. and Keuneman J.

SOCKALINGAM CHETTY, Appellant, and KALIMUTTU
CHETTY, Respondent.

350, 351 and 352-D. C. Colombo, 1,839 and 1,871.

Res judicata-Action dismissed, parties having settled dispute-Statutory bar against fresh action-Decree of dismissal-Not a registrable instrument- Registration of Documents Ordinance (Cap. 101) s. 8 (b)-Civil Procedure Code, s. 406.

Where an action for declaration of title to land is dismissed, the parties having settled their dispute, the dismissal would operate as a statutory bar against the institution of a fresh action upon the same cause of action. Such a statutory bar is binding on parties as well as their privies. Held, further, that a decree entered in such circumstances is not registrable instrument within the meaning of section 8 (b) of the Registration of Documents Ordinance.

THESE were appeals in two actions, which were consolidated for the purpose of argument. Case No. 350 was a partition action instituted by one Thiagarajah for the partition of two lands. The other case No. 351-352 was instituted by one Kalimuttu for a declaration that Thiagarajah held the two lands in the partition case and two other lands for his benefit and for an order directing Thiagarajah and his vendors to execute a valid deed conveying title to him in respect of these four lands.

The learned District Judge entered decree in favour of the plaintiff in case No. 351-352 in terms of the prayer and dismissed the partition action No. 350.

H. V. Perera, K.C. (with him N. E. Weerasooriya, K.C., D. W. Fernando and F. W. Obeyesekere), for the plaintiff, appellant in S. C. No. 350, the 3rd defendant, appellant in S. C. No. 352 and the 3rd defendant, respondent in S. C. No. 351-In regard to case No. 351-352, the action for declaration of trust must fail because section 93 of the Trusts Ordinance (Cap. 72) is inapplicable to the facts of the present case. The transfer deed of June 13, 1935, in favour of Kalimuttu was void being obnoxious to section 17 of the Partition Ordinance. Nor can the plaintiff (Kalimuttu) rely on the agreement in deed No. 841. That agreement too was void under section 17 of the Partition Ordinance. Even if it was valid, according to its very terms, that agreement expired in one month. Thiagarajah bought the properties in question from Sockalingam and Asupathy long afterwards. It cannot therefore be said that at the time

of that sale there was an " existing" contract of which specific performance could be enforced. A similar question arose in Paiva v. Marikar et. al1[(1936) 39 N. L. R. 255.]. The convenants in the deed for further and better assurance of the title conveyed do not help the plaintiff. This case can be easily distinguished from that of Hewawasan v. Gunasekere [(1926) 28 N. L. R. 33]-.

To come now to case No. 350, the District Judge was wrong in holding that the decree in the old case No. 49,758 operated as res judicata in the present case. The order " action dismissed" in case No. 49,758 had the effect of no more than a termination of the proceedings. It had not the same consequences as a termination of trial after adjudication of rights either by trial or of consent. Nothing is res judicata which has not been in issue between the parties. Further, the statutory bar imposed by section 406 of the Civil Procedure Code is a personal bar and cannot bind the plaintiff in this case. That bar cannot be elevated to the rank of res judicata. There are three kinds of bars conceivable in law, imposed (1) by the general doctrine of res judicata, (2) by the extension of that doctrine in section 207 of the Civil Procedure Code which is constructive res judicata and which is confined to the same cause of action, and (3) by a statutory bar such as is enacted in section 406 of the Civil Procedure Code. None of these bars stands in the way of the plaintiff in the present ca

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