SAROJA versus CHINNUSAMY (DEAD) BY LRS. AND ANR.

Citation: [2007] 9 S.C.R. 304 · Decided: 24-08-2007 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Dismissed

Judgment (excerpt)

A 
SAR OJA 
. ..,, 
v. 
CHINNUSAMY (DEAD) BY LRS. AND ANR. 
AUGUST 24, 2007 
B 
IT ARUN CHATTERJEE AND P.K BALASUBRAMANY AN,JJ.) 
Code of Civil Procedure, 1908: 
c 
s. l I-Res judicata-Property dispute-Respondent No.3 filed suit 
against her husband, 'K', for declaration of title-No appearance caused 
by'K'-While suit still pending, 'K' sold property to Appel/ant-:-Appel/ant 
dir/ not implead herself in suit filed by Respondent No.3-lnstead filed suit 
against Respondent No.3 for declaration of title in respect of same property-
Former suit decreed ex-parte in favour of Respondent No.3 during pendency 
D of subsequent suit filed by Appel/ant-'K' did not take step to set aside the 
ex-parte decree which attained finality-Effect of-Held: By virtue of the ex-
parte decree passed in the former suit, subsequent suit filed by Appellant is 
hit by Res judicata, as all six conditions indicated in s.11 for constituting res 
judicata are duly satisfied 
E 
In 1989, Respondent No.3 filed a suit against her husband, 'K', for 
declaration of title in respect of a property, claiming title in terms of an oral 
partition made in 1985. No appearance was caused by 'K', although service of 
notice was effected on him. While the suit was still pending, 'K' sold the 
property to Appellant in 1990. Appellant did not take any step to implead herself 
F 
in tfie suit filed by Respondent No.3 against 'K'. Instead, in 1990 itself, 
... 
Appellant filed a suit against Respondent No.3, for declaration of title in 
respect of the very same property claiming absolute ownership and possession. 
In 1992, the former suit was decreed e:x-parte in favour of Respondent No.3 
during pendency of the subsequent suit filed by Appellant. 'K' did not take 
any step to set aside the ex-parte decree. The e:x-parte decree passed in the 
G former suit attained finality. In 1993, the subsequent suit filed by Appellant 
was also decreed. Respondent No.3 filed appeal against the decree in the 
subsequent suit which was allowed by the First Appellate Court. High Court 
confirmed the judgment of the First Appellate Court holding that the e:x-parte 
~ 
. 
decree passed in favour of Respondent No.3 in the former suit operated as res 
' 
H 
304 
SAROJA v. CHINNUSAMY (DEAD) BY LRS. 
305 
judicata in the subsequent suit filed by Appellant. Hence the present appeal. A 
Dismissing the appeal, the Court 
HELD: I. The general principles of res judicata have been incorporated 
in Section 11, CPC. After a careful reading of the provisions under Section 
11, CPC, it is discernible that in order to constitute res judicata, the following B 
conditions must be satisfied: 
(i) 
There must be two suits - one former suit and the other 
subsequent suit; 
(ii) The Court which decided the former suit must be competent to 
try the subsequent suit; 
(iii) The matter directly and substantially in issue must be the same 
either actually or constructively in both the suits. 
(iv) The matter directly and substantially in issue in the subsequent 
l 
suit must have been heard and finally decided by the Court in 
the former suit; 
(v) 
The parties to the suits or the parties under whom they or any 
of them claim must be the same in both the suits; 
(VI) The parties in both the suits must have litigated under the same 
title. (Para 4J [307-F; 308-8, C, D, El 
2.1. The ex parte decree passed in the former suit would operate as res 
judicata in the subsequently filed suit of the appellant as all the six conditions 
indicated in Section 11, CPC for constituting resjudicata were duly satisfied. 
(Para 8( (310-D, E) 
2.2. So far as the conditions namely (i), (ii) and (iii) are concerned, no 
dispute can be raised or was raised by the parties as the said conditions have 
been fully satisfied in the facts of this case. (Para 81 (310-E) 
c 
D 
E 
F 
2.3. With regard to condition no. (iv), admittedly, summons was duly 
served upon 'K', the husband of Respondent No.3, and inspite of such service G · 
of summons, 'K' thought it fit not to appear or to contest the suit filed against 
him. Once an ex parte decree is passed against 'K', the same should be taken 
as a final decision after hearing. It is well settled that an ex parte decree is 
binding as a decree passed after contest on the person against whom such an 
ex parte decree has been passed. It is equally well settled that an ex parte H 
306 
SUPREME COURT REPORTS 
[2007] 9 S.C.R. 
A decree-would be so treated unless the party challenging the ex parte 

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