LexMOHAN versus SMT. ANANDI AND ORS.
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A MOHAN ~ ~ v. SMT. ANAND! AND ORS. MARCH 12, 1996 B [N.P. SINGH AND K. VENKATASWAMI, JJ.) Civil Procedure code, 1908-Section 11-Res judicata,-Jn earlier proceeding the real issue was whether suit property be attached or not-fn -, subsequent proceeding question was whether the gift-deed was valid and bind- c ing-Validity of the gift-deed was not directly and substantially in issue in earlier proceeding-Held, earlier finding will not operate as res judicata in the subsequent proceeding. B and his wife the original owners of the property, gave away the D property by way of gift-deed to the respondents. Thereafter, B sold the property to the appellant. As the appellant claimed the title, the respon- dents filed a suit for declaration of their title and for possession of the suit . - property. The appellant, alongwith three other co-plaintiffs filed a civil suit E (No. 47-B of 1951) for recovery of Rs. 506, i.e. of sale-proceeds, against B with an application for attachment before judgment of the suit property. The trial court initially allowed the application, but after hearing the parties raised the attachment. The appellant and his co-plaintiffs chal- lenged this order by filing an independent civil suit vide suit No. 42-A of r 1952. Meanwhile, suit No. 47-B of 1951 was decreed against B. Against this .. F order, B moved an appeal, but only against the appellant, though there were three other co-plaintiffs. The appeal was allowed with the remark that the documents on the basis of which the suit was filed was obtained by fraud. Consequently, the appellant's right to attach the property in execu- tion of decree passed in civil suit No. 47-B of 1951 was completely extin- G guished and accordingly the civil suit No. 42·A for attachment was also dismissed. ....., The appellant by substituting himself in the p)ace of the three other co-plaintiffs, in favour of whom the decree passed in suit No. 47-B of 1951 still stood intact continued the proceeding in civil suit No. 42-A of 1952 by H preferring an appeal against the decree, in civil appeal No. 4-A of 1956. 286 I' . MOHANv. ANAND! [K VENKATASWAMI, J.] 1fl7 The attachment of the suit property was allowed. The appellant's contention was that the judgment in civil appeal operates as res judicata in the present case. The trial court did not accept this contention. The first appellate court and then the High Court upheld the trial court's view. Aggrieved thereby, the appellant had preferred this A appeal. B Dismissing this appeal, the Court HELD : 1. The High Court was right in concluding that the real issue in the suit No. 42-A of 1952 was as to whether the suit property could be attached or not. The validity of the gift deed was not directly and substan- C tially in issue, which was to be decided in the present suit. So the decision in Civil Appeal No. 4-A of 1956 will not operate as res judicata. [290-G-H; 291-A; 292-C] 2. The appellant should hand over the vacant possession of the suit lands within three months. Ir he fails to do so, the respondents will be D entitled to execute the decree including for the mesne profits. [292-F] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1994 of i987. From the Judgment and Order d~ted 16/22.8.85 of the Bombay High E Court in S.A. No. 275 of 1977. V .A. Bob de and A.K. Sanghi for the Appellant. S.V. Tambwekar (NP) for the Respondents. The Judgment of the Court was delivered by F K. VENKATASW AMI, J. The only question that was argued in this Appeal by learned Senior Counsel for the appellants Shri V.A. Bobde was whether the present suit out of which this Civil Appeal arises was hit by the principles of Res Judicata. We may at once point out that on this issue the G trial cour~ the first appellate court and the High Court have concurrently found that the suit was not hit by the principle of Res Judicata. Nonetheless, learned Senior Counsel strenuously argued the matter to persuade us to hold that the present suit was barred by the principle of Res Judicata. Before we go into the details of the matter, we would like to point H 288 SUPREME COURT REPORTS (1996] 3 S.C.R. A oul that this case on an earlier round of litigation came up before this Court in Civil Appeal No. 473 of 1966 when this Court by judgment dated 3.3.1971 remanded the case to the trial court to consider and decide the issue relating to Res Judicata. The trial court considered and decided the
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