Radhabai vs Kadar Ali

Chaturvedi, J.—Petitioner Radhabai is the objector in execution proceedings. Kadar Ali, the opponent, was a decree-holder who obtained a decree in Civil Suit No. 63 of 1945-46 from the Munsiff''s court, Barwani, against Kundanlal who is the son of Radhabai, the Petitioner. In execution of this cleave Kadar Ali had attached four houses in Barwani. Radhabai in her objections, under Order 21 Rule 58 Code of Civil Procedure, to the attachment of the four houses, stated that she had adopted Kundanlal when he was only a boy aged 12 years, and that on 14-2-1933 prior to the ceremonies of adoption, there was an agreement between Radhabai and Motilal, natural father of Kundanlal, whereby the latter was given certain cash ginning factory, shop business, with one residential house.

The rest of the property consisting of several houses land moveable properties and ornaments was to remain with Radhabai as her absolute property. On this basis, the Petitioner claimed the houses as her own and not liable to attachment in a decree against her adopted son. The objection was dismissed Therefore Radhabai filed a declaratory suit under Order 21 Rule 63 Code of Civil Procedure. The District judge, Barwani decreed this suit. Kadar Ali, the decree-holder, did not file any appeal against that decision which became final.

Two other decrees-holders Raoji Bhai and Balmukund obtained decrees in Civil Suit No. 32 of 1945-46 and Civil Suit No. 16 of 1945-46 against Kundanmal and got the same houses attached. Radhabai also filed objections which were dismissed and hence Radhabai filed a declaratory suit under Order 21 Rule 63 against both the decree-holders, Balmukund and Raoj Bhai. The District Judge decreed the suit. The decree-holders went in appeal to the High Court where a Division Bench of this Court held the anti-adoption agreement to be invalid, and came to the conclusion that the whole property belonged to Kundanmal the judgment-debtor. In effect, it reversed the decree of the District Judge, Barwani, and held that the four houses which had been attached in the decree were rightly attached.

On this decision Kadar Ali also applied for attachment and the same houses were again attached in his decree. Radhabai again filed objections against the attachment of the four houses contending that the houses having been held not liable to attachment in Civil Suit No. 1 of 1949, could not be attached again. The learned Civil Judge rejected this objection on 17-11-1933. The Applicant erroneously filed an appeal to the District Judge, Mandleshwar, Barwani but the District Judge rejected the appeal as being incompetent. The Applicant, therefore, comes in re-vision to this Court against the order of the Civil Judge, First Class, Barwani.

Alter hearing the arguments of the learned Counsel on the point, I have no doubt that the learned Civil Judge, Barwani, has fallen into an error regarding the judgment of the Division Bench of this Court in Balmukund v. Radhabai First Appeal No. 45 of 1948 (MB)(A) as a judgment in rem. The judgment in the decree of Balmukund and Raoji Bhai was only a judgment inter partes and not a judgment in rem.

That judgment was not a judgment in a suit between the parties to the present case and, clearly, cannot be regarded as res judicata nor can it be considered to be a judgment binding upon the whole world Section 41 of the Indian Evidence Act is exhaustive as to judgments in rem. The whole question of judgments in rem in India was exhaustively discussed in Yarakolamma v. Anakala Naramma 2 Mad HCR 276 (B), Kanhya Loll v. Radha Churn 7 Suth WR 338 (FB)(C) and Togcndra Deb Roy v. Funindro Dev Roy 14 Moo IA 367 at p. 374 (PC)(D). In these rulings, it was clearly specified what were judgments in rem in our country and what were not and the result had been embodied in Section 41 of the Indian Evidence Act In 7 Suth WR 338 at p. 344 (C) Sir Barnes Peacock C.J. observed:

If a judgment in a suit between A and B that certain property for which suit was brought belonged to A the adopted son of C were a judgment in rem and conclusive against strangers as to the fact and validity of the adoption, the greatest injustice might be caused.

These observations were quoted and fully approved by the Privy Council in AIR 1941 85 (Privy Council) and their Lordships of the judicial Committee held in this ease that a judgment in a suit between A and B that the suit property did not belong to A as the adopted son of C as the adoption was invalid is not a judgment in rem and is not conclusive against the strangers as to fact and validity of adoption.

Following this in Urjun Vs. Mathura Nath and Others, it was held that no judgment except that passed by a Court in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction, up-on any matters indicated in Section 41 can have the effect of a judgment in rem and, therefore, a judgment holding that A is not adopted son of B is not conclusive against the whole world.

According to Section 41 of the Indian Evidence Act a final judgment, order, or decree of a competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction will alone be judgments in rem provided they confer or take away from any person any legal character, or they declare any per-son to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person, but absolutely.

In Punjab National Bank Vs. Balikram Kissenchand and Others, it was observed that the legal word character" in Section 41 of the Evidence Act means status; it is something more than mere right. The declaration of a person''s right operates as against a particular person; or group of persons against whom the right is claimed.

Whereas a man''s status is something which defines his position not in relation to any particular person or group persons but in relation to the rest of the world; his status distinguishes him from the rest of he world. It was then observed that to say that a person is not a partner of a firm is not to declare his status or legal character; it is merely to declare his position with respect to the particular firm. Hence it was held that an order of an insolvency Court refusing to adjudicate a person insolvent on the ground that he was not a member of a firm which had been declared insolvent is not a final order which conferred upon or took away from him any legal character within the meaning of Section 41, and hence such a judgment is not a judgment in rem.

similarly in Radhakishin v. Mt. Gangabai AIR 1928 Sind 121 (H) it was observed that the legal characters that can be conferred or taken away in the exercise of the jurisdiction mentioned in Section 41 do not include the state of being a partner.

It would follow that the judgment of a Division Bench of this Court in Civil First Appeal No. 45 of 1945 (MB)(A)(Balmukund and Raojibhai v. Radhabai and Kundanmal) regarding validity of the anti-adoption agreement dated 14-2-1933 between Radhabai and Motilal, natural father of Kundanmal, will not come in the category of a judgment in rem so as to be binding against the whole world.

So far as the objections in execution application are concerned, the whole case-law has been reviewed by a full Bench of the Madras High Court in Kandadai Narasimhachariar Vs. Raghava Padayachi, and it has been held that an order on a claim petition filed under Order 21 Rule 58 Code of Civil Procedure, or a decree in a suit filed under Rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings I respectfully con-cur in this view.

The result is that the revision will be al-lowed with costs and the order of the learned Civil Judge, 1st Class, Barwani, will be set aside.