Bhuturi Chutiani vs Mikira Chutia

Thadani, C.J.—This is a second appeal from the judgment and decree of the learned Subordinate Judge, U. A. D, dated 26th April 1949, by which be set aside the judgment and decree of the trial Court which had decreed the plaintiff''s suit with costs awarding her 36 puras of paddy every year or its value from 1944 for the duration of her life.

The plaintiff, a widow of one Kero Chutia, originally brought a suit, being Suit No. 410/26, against her step-son claiming maintenance out of the estate left by her deceased husband--in the possession of the defendant. That suit was decreed in her favour, the Court ordering 86 puras of paddy to be delivered to the plaintiff every year by the defendant out of the properties left by the deceased Kero. From time to time the plaintiff obtained satisfaction of her decree in Suit NO. 410/26 through Court until 1943. From 1944 to 1947 the plaintiff failed to execute her decree and when she attempted to take out execution in March, 1947, the Court dismissed the execution application as time-barred. She then brought the present suit, being Suit No. 111/47, for the recovery of maintenance for the years 1941, 1945 and 1046. The suit was decreed by the trial Court, but dismissed by the lower appellate Court on the ground that the present suit was barred by the principles of res judicata. The trial Court had stated:

The present suit is based on different causes of action and nothing has been shown how the present suit is barred by res judicata. When the present suit has been filed within 3 years since the annuity was stopped and there is nothing contrary to this from the defence side, I find no reason why the suit is barred by limitation. The two issues, namely, the issues as to res judicata and limitation, are accordingly decided in favour of the plaintiff.

It was stated from the Bar before us that the records of suit No. 410/26 have been destroyed.

Mr. Sen for the appellant contends (1) that the decree in Suit No.. 410/26 was merely a declaratory decree declaring the plaintiff''s right to maintenance from the estate of her deceased husband in the possession of the defendant at the rate of 36 puras of paddy every year or its value, (a) that assuming that the decree passed in Suit No. 410/26 was a decree capable of execution, there was no bar to the plaintiff''s bringing a suit for the recovery of the arrears of maintenance for the three years. In support of the second contention, he has relied upon a decision of the Madras High Court reported in Sabhanatha v. Lakshmi, 7 Mad. 80.

It is unnecessary to decide whether the decision reported in Sabanatha v. Laksmi, 7 Mad. 80 governs the facts of this case, for, in the absence of the Judgment and decree passed in Suit No. 410/26, it is not possible for us to say that the present suit is barred by res judicata. The lower appellate Court has apparently proceeded on the supposition that upon the admited facts the provisions of Section 11, Code of Civil Procedure., applied. We do not think, in the absence of the judgment and decree passed in suit No. 410/26, the admitted facts can take the place of estoppel by record--a plea which had to be established by the defendant by the production of the judgment and decree in Suit No. 410/26. In this view, we set aside the judgment and decree of the lower appellate Court and restore that of the trial Court.

The lower appellate Court allowed the appeal with no order as to costs. Before us, the respondent did not appear. The question, there fore, of the costs of this appeal does not arise; nor do we propose to vary the order of the lower appellate Court as to costs of the appeal before that Court. The trial Court had decreed the suit with coats against the defendant, but the lower appellate Court ordered that the costs of the suit must be borne by the parties. As we have set aside the judgment and decree of the lower appellate Court and restored that of the trial Court, it follows that the plaintiff''s suit will stand decreed with costs. But we make no order as to costs of the appeal in the lower appellate Court or this Court.

The result is that the appeal is allowed, with no order as to costs in the lower appellate or this Court.

Ram Labhaya, J.

I agree.