SHIVASHANKAR PRASAD SHAH & ORS. versus BAIKUNTH NATH SINGH & ORS.

Citation: [1969] 3 S.C.R. 908 · Decided: 07-03-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

SHIV ASHANKAR PRASAD SHAH & ORS. 
A 
v. 
BAIKUNTII NATH SINGH & ORS. 
March 7, 1969 
[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
B 
Code of Civil Procedure-Re.s·Judicata--Objection against execution 
proceeding, when barred. 
Bihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final 
Decree obtained-Effect of. 
After a preliminary decree was obtained by the appellants (mortgagees 
of an Estate including both Bakasht lands and other lands), the Bihar 
Land Reforms Act, 1950 came into force. 
The appellant filed petition 
for passing final decree. The Estate mortgaged vested in the State as a 
result of a notification issued under s. 3(1) of the Act, and later a final 
decree was passed in the mortgage suit. Thereafter the appellants applied 
under s. 14 of the Act and got determined the compensation to which 
they were entitled under the Act. But yet they filed an execution petition 
to execute the mort~age decree against the Bakasht land. The respondents 
resisted that execution by filing an application under s. 47, Civil Pro· 
cedure Code contending that. the execution was barred under s. 4(d) of 
the Acjt. 
That application was dismissed for default of the respondents. 
A second application raising, the same ground was filed by the respon-
dents but this, too, was dismissed for their default. A third application 
raising the same ground was filed by the respondents and in this, the 
execution court overruled the objection raised by the respondents on the 
grounds (i) that the objection was barred by the principles of res judicata 
and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision 
was affirmed in appeal, but reversed in second appeal by the High Court. 
Dismissing the appeal this Court; 
HELD ; ( i) The objection was not barred by the principles of res 
iudicata. Before a plea can be held to be barred by res judicata that plea 
must have been heard and determined by the court. Only a decision by 
a court <lould be res judicata, whether it be statutory under s. 11, Civil 
Procedure Code or constructive as a matter of public policy on which 
the entire doctrine rests. An execution petition having been dismissed for 
the default of the decree·holder though by the time that petition came to 
be dismissed. the judgment debtor bad resisted the execution on one or 
more grounds, docs not bar the further execution of the decree in pu'r· 
suance of fresh execution petitions filed in accordance with law. 
Even 
the dismissal for default of objections raised under s. 47, Civil Procedure 
Code does not operate as res judicata when the same objections are raised 
again in the course df the execution. [911 B-HJ 
Maharaja Radha Parshad Sinf!h v. Lal Sahab Rai & Ors. L.R. 17 I.A. 
150 Pulvarthi Venkata Subba Rao v. 
Velluri lagannadha Rao & Ors. 
[196"4] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravji Bhikaji Kond· 
kar, XXXI B.L.R. 400, Bahir Das Pal cl: Anr. v. Girirh Chandra Pal, A.l.R. 
1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Or~. A.I.R. 
1950 Pat. 354, lethmal & Ors. v. Mst. Sakina. A.l.R. 1961 Ra1. 
1959 
Bishwannth Kundu v. Smt. Subala Dassi, A.l.R. 1962 Cal. 272, referred 
to. 
c 
D 
E 
F 
G 
H 
S. P. SHAH v. B. N. SINGH (Hegde, J.) 
909 
A 
Ramnarain v. Basudeo, I.LR. XXV Pat. 595, disapproved. 
B 
c 
D 
E 
F 
G 
H 
(ii) Proceedings under s. 4(d) of the Bihar Land Reforms Act, 1950 
included execution proceedings and the execution could not be proceeded 
with. The only remedy open to the appellants was to get compensation 
under Chapter IV of the Act. [913 G, Hl 
Reading ss. 3, 4 and 6 together, it followed that all Estates notified 
under s. 3 vested in the State free of all encumbrances. 
The quondum 
proprietors and tenure holders of those Estates lost all interests in those 
Estates. 
As proprietors they retained no intere"t in respect 
of 
them 
whatsoever. 
But in respect of the lands enumerated in s. 6 the State 
settled on them the rights of raiyats. Though in fact the vesting of the 
Estates and the deemed settlements of raiyat rights in respect of certain 
classes of lands included in the Estates took place simultaneously. in law 
the two must be treated as different transactions; first there was a vesting 
of the Estates in the State absolutely, free of all encumbrances. Then 
followed the deemed settlement bv the State of raiyat's rights on 
the 
quondum proprietors. 
Therefore in law it would 
not be correct to say 
that what vested in the State were only those
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