NARAYANA PRABHU VENKATESWARA PRABHU versus NARA YAN PRABHU KRISHNA PRABHU & ORS.

Citation: [1977] 2 S.C.R. 636 · Decided: 19-01-1977 · Supreme Court of India · Bench: A.N. RAY, M. HAMEEDULLAH BEG, P.N. SHINGAL · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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636 
NARAYANA PRABHU VENKATESWARA PRABHU 
v. 
NARA YAN PRABHU KRISHNA PRABHU & ORS. 
January 19, 1977 
[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J 
. Code of C~vi/ Procedure-s. 
11-Explanations II and VI-Scope of-
Exzstence of right of appeal-If a bar of res-judicarn. 
Explanation II to s. 11 C.P .C. provides that for the purposes of the section, 
the co.mpetence of a Court shall be determined irrespective of any provision as 
to a nght of appeal .from the decision of such Court. Expliination VI provides 
that where persons htagate bona fide in respect of a private right claimed in 
common for themselves and others, all persons interested in such right shall, 
for. the putjJo~es of this section be deemed to claim under the persons so liti-
gatmg. 
The respondents and the appellant were brothers. The respondents filed a 
suit for partition of the family properties in the Court of Additional Sub-Judge 
of competent jurisdiction. The appellant on the other hand filed a money suit 
against one of the brothers in the Court of a Munsiff in which he impleaded 
his other brothers. Ultimately, the money suit was transferred to the Court of 
the Additional Sub-Judge, where the partition suit was p.;\'nding and both the 
suits were tried together. In appeal, the High Court heard and decided both 
the appeals together and pronounced separate judgments in continuation 
but 
under separate headings and a separate decree was prepared in each 
appeal. 
The appellant filed an appeal in this Court under Art. 133(l)(a) of the Cons-
titution before its amendment, as a matter of right, against the judgment of the 
High Court in the partition suit. 
A preliminary objection was taken by the respondents in this Court that tae 
appeal was barrec\ by res-::":icata in that the appellant did not file an appeal 
against the judgment and J~cree in the money suit. The appellant on the other 
hand contended that neither in law nor in equity was he barred by res-iudicata 
because he filed the appeal in the partition suit as a matter of right, which was 
not available to him in the money suit. 
Dismissing the appeal, 
HELD : The preliminary objection i~ supported by s. 11 of the Code 
of 
Civil Procedure read in the light of Explanations II and VI. 
[644 BJ 
1 (a) Section 11 enables a party to raise the statutory pie'\ of _res-iudicata 
if the conditions given therein are fulfilled. 
Section 11 contams, m statutory 
form, with explanations, a very salutary principle of public policy. [641 G·D] 
In the instant case, the incompetence of the Court, in which the money suit 
was initially filed, to try the partition suit did not matter when the actual hear-
ing of both the cases took place in the same Court. That Court was competent 
to try both the suits. After the money suit had been transferred, the second 
Additional Sub-Judge actually tried and decided both 
of 
them. That was 
enough to make the difference in the jurisdiction of the Court in which the suits 
were ~initially filed, quite immaterial. Similarly the High Court was competent 
to hear the appeals from judgments in both cases. It heard and decided 
the 
appeals together. [642 A-C] 
Narhari & Ors. v. Shankar & Ors. [1950] S.C.R. 754 distinguished. 
Lonankutty v. Thomman & Anr., A.I.R. 1976 SC 1645=[1976] Supp. S.C.R. 
74 followed. 
N. PRABHU V. PRABHU V. N. PRABHU K. PRABHU (Beg, J.) 
637 
Sheoparsan Singh v. Ramnandan Prasad Singh, AIR 1916 PC 78=43 I.A. 91, 
Govind Bin Lakshmanshet Aniorlekar v. Dhondba 'Ea' V Bin Ganba' RA 'V' 
'V' Ta' Mbve, ILR Vol. XV Bombay 104 and Avanasi Gounden & 
Or~. v. 
Nachamma/, LLR 29 Madras 195 referred to. 
Bhugwanbutti Chowdhrani v. A. If. Forbes ILR 28 Ca!." 72 approved. 
(b) The expression "former suit" in Explanation I of s. 11 makes it clear 
that, if a decision is given before the institution of the proceeding which is 
sought to be barred by res-iudicata, and that decision is allowed to become 
final or becomes final by operation of law, a bar of res-judicata would emerge. 
[643 ll] 
( c) One of the tests in deciding whether the doctrine of res-judicata applies 
to a particular case or not is to determine whether two inconsistent decrees will 
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come into existence if it is not applied. 
In a partition suit each party claiming 
that the property is joint, asserts a right and litigates under a title . which 
is 
common to others who make identical claims. If that very issue is litigated in 
another suit and decided

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