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Judgment
Sadasiva Aiyar, J.—In A.A.A.O. No. 205 of 1919. This civil miscellaneous Second Appeal has arisen out of an execution proceeding, the
decree-holder being the Ist appellant. He obtained an executable decree in the Madura District Munsif''s Court on 23rd February 1909 for sale of
certain lands. On the 1st January 1912, a new Court called the District Munsif''s Court of Melur was established which obtained jurisdiction over
those lands. A valid application for execution was made to the proper Court on the 7th February 1912. On the 3rd April 1912 an oral application
was made to the Madura Munsif''s Court for extension of time to take a step in execution. This oral application of 3rd April 1912 to the Madura
Munsif''s Court was not made to the proper Court (or to a proper Court) according to the current of decisions of this High Court which obtained
till 1919 when the Full Bench Decision in Seeni Nadan v. Muthusamy Pillai 37 M.L.J. 284 was pronounced. Following the prevailing view, the
application made to the Madura Munsif''s Court on 1st April 1915 was dismissed by the High Court on second appeal on 17th September 1917
as being an invalid application. In so dismissing the application made to the Madura Munsif''s Court on the ground that it had no jurisdiction to
entertain it and that the proper Court to entertain it was the Melur Munsif''s Court, the High Court further remarked that as the previous application
of 3rd April 1912 had also been made to the incompetent Madura Munsif''s Court, it would not save limitation for the application of Ist April 1915
even if this application of 1st April 1915 had been made to the competent Melur Court.
The present application for execution'' was made to the Melur Munsif''s Court on the 23rd November, 1917 which was the proper Court to
entertain the application according to the view which prevailed till 1919, but this application has also been dismissed on the ground that it was
barred by limitation because the application made in 1915 to the Madura Munsif''s Court was decided by the High Court to be an application
made to a wrong Court and hence could not save limitation.
The vakil for the appellants argues that as the former current of decisions was held to be erroneous in Seeni Nadan v. Muthusamy Pillai 37
M.L.J. 284 the decision of this Court'' which held in 1917 that the application made to the Madura Munsif''s Court on 1st April 1915 was not an
application to a competent Court was erroneous, that that erroneous decision being a decision on a question of law is not binding upon the parties
when the same question arises in a subsequent proceeding even though between the same parties and that therefore the present application of
November 1917 being within three years of the previous competent application of Ist April 1915 is not barred by limitation.
It is argued on the other side by the 2nd respondent''s learned vakil that even though the decision of the High Court in September 1917 in the
execution application of April 1915 that it was made to an incompetent Court may be erroneous, that decision so far as it positively decided that it
was made to an incompetent Court and was not in accordance with law is a conclusive adjudication between the parties as to the nature of that
application and cannot be questioned when the point whether it was a competent application arises for decision in a subsequent execution
application in the same suit.
I must admit that I have found some difficulty in deciding between the above respective contentions on both sides. (Several other difficult
questions were also argued during the hearing of this case, but a reference to them will only tend to cloud the clear grasp of the above sharply
opposed contentions).
In Sree Rajah Bommadevara Venkata Narasimha Naidu v. Andavolu Venkataralnam (1916) 32 M.L.J. 63 this Bench considered a similar
question and made pronouncements thereon. My learned brother referred in his judgment to the decision of Their Lordships of the Privy Council in
Badar Bee v. Habib Merican Noordin (1909) A.C. 615. In the Privy Council case, the construction of the testator''s will in a decision in a prior
suit was held to be res-judicata when that same will had to be constructed between the same parties in a subsequent suit because on that
construction the Court had pronounced its decision on the legal rights of the parties. The fact that the opinion or finding pleaded as res-judicata
related to a point of law or to the construction of a document and not to a question of fact was considered immaterial. My learned brother finally
said in his judgment, My conclusion is both on the authority of the Privy Council and on the language of the section'''' (that is, Section 11 of the
Civil Procedure Code) ""that where a decision on a point of law whether it be on the construction of a docu-ment or of a statute or on common law
or on customary law settles a question that arises directly out of conflicting views as to the rights of the parties, it is res-judicata.'''' In my short
opinion in the same case, I referred to Bishnu Priya Chowdhurani v. Bhaba Sundari Debya I.L.R (1901) Cal. 318 and said that in that case ""the
distinction was pointed out between the contention that the decision on an abstract question of law (say a question of limitation between the
parties) in one suit is res judicata so that the law of the land should itself be deemed to have been altered when that question arises in subsequent
suits between the same parties and the contention that a legal right found, declared or awarded in favour of one of the parties in one suit though
based on an erroneous view of the law or an erroneous construction of a document is res judicata when that same legal right is con-troverted in
subsequent suits between the same parties."" And I concluded that the first contention was unsustainable while the second ought to be upheld. It
was decided so long ago as in 1881 by their Lordships of the Privy Council in the leading case in Mungul Pershad Dichlt v. Grija Kant Lahiri ILR
(1881) Cal. 51 that an order made in execution proceedings whether right or wrong is res judicata between the parties in a subsequent execution
application where the validity of that order comes into question directly for the purpose of deciding whether the. subsequent application is
maintainable. I think the principle on which that case was decided has been firmly established now. In Sheoraj Singh v. Kameshar Nath ILR
(1902) All. 282. the Subordinate Judge had wrongly decided a question of limitation in execution and had held that an application of 1897 was not
barred when it had been barred. That application was struck off and when a fresh application was made in 1898 the judgment-debtor was not
allowed to raise the plea that the application of 1897 had really been barred and that therefore it could not form a fresh starting point for the three
years'' limitation so as to make the application of 1898 a valid application in time.
The present is a converse case, but I think the same principle ought to be applied. In this case the application of April 1915 was dismissed as
made not to a competent Court (and as barred if it could be assumed to have been made to a proper Court). The decree-holder could not
maintain the present application without establishing that the petition of April 1915 was made to a proper Court or, if so made, was not barred.
The order of this Court deciding that the prior application was not made to a proper Court has become a final decision on the question of the legal
right of the decree-holder to treat that petition as a petition presented to the proper Court. That decision had at least this legal effect, namely, that it
negatived the right of the decree-holder to treat his application as one made to the proper Court. Such a negation of his legal right is not decision
on a pure or abstract question of law, and hence it is res-judicata in the present proceedings and as without establishing that right, the decree-
holder cannot maintain the present execution petition, it was rightly dismissed by the lower Courts. I would therefore dismiss the appeal but as it is
a hard case and the question of law is one of great difficulty and abstruseness, I would make no order as to costs in the appeal.
In A.A.A.O. No. 206 of 1919:--The above judgment governs the connected C.M.S.A. No. 206 of 1909.
Napier, J.
I agree. I am clear that if the application had been made to what is now held to be a proper Court the objection would be fatal, and I think that
the same test must be applied when it is made to a Court which always was considered a proper Court.