Kayyana Chittemma and Another vs Doosy Gavaramma and Others

For the purposes of the questions we have lo consider in this appeal the material facts are as follows : - In July 1890 the father of the plaintiffs

mortgaged certain lands to certain parties whose interest is now vested in the defendants. In July 1895,the father executed and registered a sale

deed by which he purported to sell the lands in question to the plaintiffs, the lands being in possession of the defendants under the mortgage of July

1890. In O.S. No. 407 of 1895, a suit against the father, the lands were attached. The plaintiffs preferred a claim to the attached property. This

claim was rejected by an order, dated 22nd February 1896, made u/s 283 of the Code of Civil Procedure. In July 1898, the father purported to

sell the lands to the defendants. In October 1898, when the property was put up for sale in execution of the decree in O.S. No. 407 of 1895, the

late first defendant paid off the amount due under the decree and the attachment was raised.

The present suit is a suit by the plaintiffs to redeem the lands in question.

The Court of first instance held that the plaintiff''s claim was barred by Article 11 of the second schedule to the Limitation Act, the plaintiffs not

having brought a suit to establish their right to the property in dispute within one year from the date of the order made u/s 283 of the Code of Civil

Procedure. The lower appellate Court was of opinion that the claim was not barred inasmuch as there had been no ""investigation"" of the plaintiff''s

claim within the meaning of that word as used in the Code. We do not think the Judgment of the lower appellate Court can be supported upon the

ground that there has been no ""investigation"" of the plaintiff''s claim. The actual order was ""The sale seems to be collusive; claim rejected."" The

District Judge observes, ""The sale in question was one by a father to his daughters and the Munsif may have thought from a glance at the sale deed

that it was probably collusive.

Assuming this to have been so, we think it must be taken that there was an ""investigation"" within the meaning of this word used in the sections.

It is not possible to define the amount of inquiry which constitutes an ""investigation."" If the order purports to deal with the claim on the merits, we

think it must be taken that there has been an investigation. In the case of Saradhi Lal v. Ambika Prasad ILR (1888) 15 C. 521 the Privy Council

observe ... The Code does not prescribe the extent to which the investigation should go, and though in some cases it may be very proper that there

should be as full an investigation as if a suit where instituted for the very purpose of trying the question, in other cases it may also be the most

prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring

the suit which the law allows to him."" In the case of Munisami Reddi v. Arunachalla Reddi ILR (1894) 18 M. 265, in which the Court held there

has been no investigation and consequently no order within the meaning of the section, the claim was ""practically withdrawn."" In the case of

Pullamma v. Pradesham ILR (1895) 18 M. 316 the order was ""there is nothing to show that the petitioner''s lands have been attached,"" and it was

held there was no order within the meaning of the section. In that case, the court held, in effect, that there was no occasion to investigate since

there was nothing to show the lands had been attached. There does not appear to be any case in which an order which purports to be an

adjudication on the merits of the case, has been held to be not an order made after investigation within the meaning of the section. It was argued on

behalf of the respondents that the decree of the lower appellate Court could be upheld upon the ground that the property not having been sold in

execution of the decree, and the decree having been satisfied, the order was not conclusive as between the plaintiffs and the defendants. The

argument was that the decree having been eventually satisfied there was no reason for the plaintiffs to bring a suit and the fact that it was not

satisfied until after the expiration of a year from the date of the order was immaterial. The contention was that the order was only conclusive against

the plaintiffs, if they failed to bring a suit so as to bar them from denying the right of the judgment creditor to sell the land which he had attached and

the right of a purchaser claiming through a sale in execution proceedings. The respondents relied on the observation in the judgment in the case of

Umesh Chander Roy v. Raj Ballabh Sen ILR (1882) 8 C. 279. The observation is as follows: - ""The finding of the court in the executive

department that the sale was invalid, only meant that the sale was invalid, as against the judgment creditor, and as against any purchaser who might

purchase at a sale held in execution following that attachment. When the judgment creditor was paid off, he had no further claim.

This observation must of course be read by the light of the facts of the case with which the learned judges were dealing. Secundam subjectam

materiem. The facts in that case are distinguishable from those in the present case, first, on the ground that in the Calcutta case the decree amount

was paid off by the judgment debtor in the suit in which the decree was obtained and not, as in the case before us, by a third party to whom the

lands were subsequently conveyed. Further there is nothing to show that in the Calcutta case the payment off was not made within a year from the

date of the order dismissing the claim.

Our attention was called to the other cases where an order u/s 288 of the CPC dismissing a claim has been held to be not conclusive against the

claimant. It seems to us that all these cases are clearly distinguishable. In the case of Krishna Prasad Roy v. Bipin Bihary Roy ILR (1903) 31 C

228 certain lands of which the plaintiff was in possession were attached under a decree. He preferred a claim in the execution proceedings u/s 278

and the claim was dismissed by an order u/s 283 of the Code of Civil Procedure. He at once paid off the decree amount and the attachment was

raised. It was held that when the attachment was removed after the payment of the decretal amount, there was no longer any attachment or

proceeding in execution in which the order could operate to the prejudice of the plaintiff and therefore there was no necessity for him to bring a suit

to set aside the order. In that case the plaintiff by his own act within a year from the making of the order, got the attachment removed. This being

so, he could not be held to be under any obligation to bring a suit to secure the object which he had already secured by paying off the amount of

the decree. The principle of that decision is not applicable to the present case. In the case of Ibrahimbai v. Kabulabhai ILR (1898) 13 B. 72 the

amount of the decree was paid off by the judgment debtor. In the case of Gopal Purushottam v. Bai Divali ILR (1893) 18 B. 241 the attachment

was removed by the act of the judgment creditor who was the plaintiff in the suit. Having removed the attachment by his own act, he could not be

heard to say against the claimant (the defendant in the suit) because you did not bring a. suit when your claim was dismissed, you are concluded

from setting up title as against me.

In the three cases just referred to, it is clear that the decree amount was paid off within a year from the making of the order u/s 383 of the Code

of Civil Procedure.

In the first case of Umesh Chander Roy v. Raj Ballabh Sen ILR (1882) S.C. 279 the report does not state when the decree amount was paid

off, though there is nothing to suggest it was paid off more than a year after the making of the order. In all the cases the decree was paid off by a

party to the execution proceedings- not as in the case before us, by a third party. It is not necessary for us to decide whether the fact of the money

having been paid off by a third party would be a good ground for distinguishing the present case from the cases to which we have referred. We are

of opinion, however, that the payment off not having been made within a year after the date of the order, the order is conclusive as between the

claimants (the plaintiff) and the defendants. To hold otherwise would lead to uncertainty of title and would be inconsistent with the policy of the

legislature in prescribing a short period of limitation for suits by parties against whom an order has been made in claim proceedings.

To hold that the right of an unsuccessful claimant to bring a suit remains in a state of suspended animation for an indefinite period after the

expiration of a year from date of the order against him liable to be revived at any moment by the payment off of the amount of the decree would

lead to great inconvenience.

On the facts of the case we are of opinion that the order u/s 283 was conclusive as between the plaintiffs and the defendant and the order of

the lower appellate court cannot be supported on the ground that it was not.

There remains the question of res judicata. If the plaintiff''s claim in the present suit is res judicata, we are of course precluded from giving

effect to the view indicated above and we must dismiss the appeal. The respondents (plaintiff) say that their claim in the present suit is res judicata

by reason of the decree in O.S. No. 39 of 1899. As regards this question the view of the District Judge was that the claim in the present suit was

res judicata in the plaintiff''s favour but he did not discuss the question at any length as it was unnecessary for him to go into it since he allowed the

appeal on another grounds. The parties to O.S. No. 39 of 1899 were the present plaintiffs and the present first and second defendants. The first

defendant is dead. The present third defendant is the adopted son and the present fourth defendant is a party who claims as alienee from the third

defendant. For the purpose of the question of res judicata we are of opinion that the parties are the same. In O.S. No. 39 of 1899, the plaintiffs

obtained a decree for redemption of plaint items Nos. 1 and 2 in that suit. As regards items Nos. 8 to 5 in that suit, the suit was dismissed on the

ground that on the construction of the mortgage deed the plaintiffs were not entitled to redeem these lauds before the 18th July 1900. Items Nos. 3

to 5 in the suit of 1899 are the items which the plaintiffs seek to redeem in the present case. The appellants contended that the decree in O.S. No.

39 of 1899 does not operate as res judicata since it is an erroneous decision on a point of law and they rely on the judgment of this Court in the

case of Parthasarathi v. Chinnakrishna ILR (1882) 5 M. 309. It seems to us that that case may be distinguished on the ground that the parties were

not the same in the two suits; but however this may be, the judgment in that case appears to have proceeded on the ground that the decree relied

on as res judicata was based on a misapprehension as to a general rule of law.

In giving the plaintiffs a decree in O.S. No. 39 of 1699 as regards items Nos. 1 and 2 of the land in question, we do not think it can be said

that the District Munsif was under any misapprehension as to any general rule of law applicable to the case. The question he had to determine was

a question of mixed law and fact as in the case of pria Choudhurani v. Bhaba Sundari Detya ILR (1901) 28 C. 318.

The question was on the facts whether there had been an ""investigation"" within the meaning of the word as used in Section 283 of the Code of

Civil Procedure. He was of opinion that there had not been and because he was of this opinion lie gave a decree for the plaintiffs. The investigation

was with reference to the lands amongst others which the plaintiffs seek to redeem in the present suit. We are of opinion that the question of the

plaintiff''s right to redeem the lands which they seek to redeem in the present suit is res judicata by reason of the decree in O.S. No. 39 of 1899.

The appellants have contended that if the respondents are entitled to redeem the lands in question they can only do so on payment in addition to

the amount due under the mortgage of a sum of Rs. 187-15-7. This was a sum paid by the appellants (defendants) in order to raise the

attachments in O.S. No. 407 of 1895. This payment was made by the defendants after the alleged sale to them and it was made for the purpose of

clearing their title under the sale deed to them. It was a voluntary payment and was not made on behalf of or for the benefit of the plaintiffs. We are

of opinion that the plaintiffs cannot be called upon to pay this amount in their suit to redeem. We dismiss the appeal but without costs.