Shib Nath Singh vs Tinkauri and Others

Roe, J.—For the purpose of the decision of this appeal it is necessary only to state a portion of the facts. They are that on the 21st March 1911 the respondent Tinkauri Kundu attached certain property in execution of a decree obtained against Bhagwan Sahu. The position of the property at that time was that Shivnath was in possession of it and that Bhagwan had for some months previously been litigating in good faith upon the title to the property. Immediately after the attachment Bhagwan abandoned this litigation and on the 28th June withdrew his suit by an application which has been described in the judgment of the learned Munsif as a compromise but more accurately stated in the judgment of the learned District Judge to be an abandonment of title in circumstances suggesting collusion. The learned Judge, having regard to his view of the manner in which the litigation between Bhagwan and Shivnath terminated, himself entered carefully into the question of title as between Bhagwan and Shivnath and found as a fact that the title lay with Bhagwan.

He held, therefore, that the execution taken out by Tinkauri Kundu upon the basis of the attachment of the 21st March 1911 conveyed the title of Bhagwan to the respondent Tinkauri Kundu.

Against this decision Shivnath appeals and it is contended that inasmuch as the litigation between Bhagwan and Shivnath was entered upon in good faith by Bhagwan and contested in good faith by Shivnath up to the date of the compromise, the decree made in favour of Shivnath must be held to be a good decree, and, inasmuch as it constitutes the present cause of action res judicata as against Bhagwan it must be held to be so as against Tinkauri Kundu also.

It is admitted on behalf of the defendant that if the abandonment by Bhagwan was fraudulent the fraud cannot be allowed to deprive Tinkauri of his rights, but it is contended that there must be definite proof of fraud before a compromise entered into in these circumstances can be said to be invalid.

On the authority of Dinendronath Sannial v. Rajkumar Ghose 8 I.A. 65 ; 7 C. 107 ; 10 C.L.R. 281 ; 4 S L.R. 236 ; 4 S P.C.J. 213 ; 5 Ind. Jur. 376 ; 3 Ind. Dec. 619 it may be said that it is not necessary to prove fraud at all in a case such as this. But in any event the investigation by the learned Judge into the title of Bhagwan shows clearly that that title was a good title: the fact that Bhagwan withdrew from the contest on that title with great suddenness without any explanation whatever would be sufficient to justify the learned Judge''s suggestion that there has been a fraud.

That abandonment cannot affect the right of the attaching creditor to have an investigation made into the title of the judgment-debtor in the property. That title, which has been adjudged as a question of fact to lie with the judgment-debtor, Bhagwan, must now be held to lie with the auction-purchaser Tinkauri Kundu.

I would dismiss the appeal with costs.

Chapman, J.

I agree that the appeal should be dismissed with costs. The provision in the CPC to the effect that where a suit is withdrawn the plaintiff may not bring a fresh suit is based upon the principle of estoppel. The withdrawal operates as a bar only in respect of the plaintiff and his privies. The withdrawal does not operate as a bar in respect of a person who has purchased the plaintiff''s interest at a sale in execution under an attachment prior to the withdrawal.