It is fairly settled that the principle of res judicata can be invoked even in the interlocutory proceedings arising out of the same suit.

Citation
AIR 1977 Karnataka 60

CDJ 1976 kar. HC 123

Cases Referred:
Code of Civil Procedure 1908 - Section 11, Order 20, Rule 18, Order 1, Rule 10 -

Comparative Citations:
1976 (2) KantLJ 217, 1977 AIR(Kar) 60

Judgment

(1) THIS revision petition is directed against the judgment of the Civil Judge, Civil Station, bangalore, by which he disposed of four Interlocutory Applications Nos. 54, 55, 56 and 57 of 1975 arising from a suit for partition in which proceedings for passing of a final decree are pending. 0. S. No.22/60 was filed by one Smt.Umia Ben, for partition of moveable and immoveable properties left by her deceased father Ambar,am Fakirbhai Vekharia. The deceased died on 4-12-1959 leaving six sons (defendants 1 to 6) and five daughters including the plaintiff. One of the daughters Umia Ben who was the former defendant No.7 was subsequently transposed as plaintiff. It was stated that that she had sold her rights in the properties to the defendants (2,4 to 6). The suit was obviously for partition of the properties and also for rendition of accounts. It appears, subsequently defendants 1 to 6 applied for being transposed as plaintiffs but their respective applications were rejected. The suit was compromised and a decree that followed indicated that the plaintiff was entitled to Rs.70,000/- and similarly the other four sisters would be entitled to Rs.70,000/each, which amount was to be paid by the defendants 1 to 6 and the respective shares of these defendants were also specified in the compromise decree. After this compromise decree which was passed on 26-11-1970 the parties seem to have waited for some time and on 28-1-1972, Thakordes (defendant-1) filed an application in which he stated, inter alia, that a preliminary decree was passed on 26-111970 and the proceedings be initiated for preparation of a final decree. He claimed for partition of the properties and with that purpose in view, asked for the appointment of a Court Commissioner. It appears, as many as three Commissioners were appointed by the Court, but it was ultimately found that the properties, which included a residential house at the Hospital Road and a shop at the Commercial street were incapable of being partitioned. Accordingly, the court considered that these properties be sold and the proceeds be distributed amongst the co-sharers. The defendants 2, 4 to 6 being dissatisfied with the order of the court filed C. R. P. 2920/73 against defendants 1 and 3 before the High Court and on 14-8-1974 again, a compromise was brought into existence between the parties. In that compromise it was laid down, that the total value of the disputed house and the shop was Rs. Fifteen Lakhs and that the defendants 1 and 3 could take the house and the shop after paying Rs. 10,71,428. 50 the value of the share belonging to defendant-2 and defendants 4 to 6. This payment wag to be made before 14-11-1974 Failing that, the defendants 2, 4 to 6 were entitled to purchase the two properties by making total payment of Rs.3,50,000 to the defendants I and 3. It appears the defendants 1 and 3 did not deposit the amount and as such the defendants 2, 4 to 6 became entitled to vacant possession of the two properties as they deposited Rupees 3,50,000/- on 16-11-1974. Thereafter, I. A. No. 45 was filed by defendants 2, 4 to 6 in which a prayer was made that vacant possession of the two properties be handed over to them and defendants I and 3 should vacate the two premises. It was also averred that the sale certificate be issued in their favour and that the stock in-trade kept within the premises of the shop be got removed and disposed of according to law. There was some dispute in regard to the payment of estate duty and it was further prayed that the defendants I and 3 be asked to pay their share of the estate duty which was a charge upon the two properties. In fact, the Estate Duty officer had effected attachment of the amount deposited, in lieu of payment of the estate duty. There was also a claim of Vijaya Bank which had advanced some money to these defendants. Defendants 1 and 3 filed their objections in I. A. No. 45 and they inter alia submitted that the amount was not properly deposited and hence defendants 2, 4 to 6 could not be considered to have become the owners of the properties, and that the decree as such was not executable and that a direction regarding the stock-in-trade kept within the shop preraises was required to be given by the court. After 1. A. No. 45 was decided by the executing court, a revision against that decision which was against the defendants 1 and 3, was taken in C. R. P. No. 45/76 to the High court. In that revision, all the points of contention raised by the respective parties, were gone into, and the learned Judge dismissed the revision on 11-2-1976. Thereafter, defendant-i thakordas filed 1. A. No. 54 while defendant-3 A. Ramanlal filed 1. A. Nos. 55 and 57. It was contended by defendant-1 that he is not in possession of either of the two properties and as such, the amount of Rs. 1,75,000/- cannot be withheld from payment to him. Accordingly, he asked for that payment. Defendants 2, 4 to 6 however, filed objections, saying that unless vacant possession was delivered by defendants-1 and 3 neither of them would be entitled to withdrawal of their share of the amount deposited. In I. A. Nos. 55 and 57 the defendant-3 contended that some alternative arrangement for payment of estate duty was accepted by the Estate Duty Officer and as such his payment of the share in the amount could not be withheld, Besides, he contended that he could not be asked to deliver vacant possession unless proper arrangement was made by the court for disposal of the stock-in-trade. Defendent 3 in I. A. 57 contended that under the provisions of the Urban Land Ceiling and Regulation Act, prior permission was required before the sale certificate could be granted to the defendants 2, 4 to 6 and unless the said certificate is granted possession cannot be taken from defendant-3. I, A. No. 56 was filed by the Estate Duty officer and according to him, defendant-3 is liable to pay the estate duty and as such he could not be given his share in the amount unless he discharged that liability, The learned Civil Judge dismissed 1. A. Nos. 54, 55 and 57 while he allowed 1. A. No. 56 inasmuch as he directed that the defendants I and ~ had to deliver vacant possession to the defendants 2, 4 to 6, and only thereafter they would be entitled to receive their respective share in the amount deposited by the other defendants. As regards the estate duty, the decision was, that the defend-ant-3 was liable to pay the estate duty as requested by the Estate Duty Officer in 1. A. 56. Against that decision of the learned Civil Judge, the present revision is instituted by the defendants I and 3 and since all the L A. applications have been decided by a single order, only one revision has been filed which too can be disposed of by a single judgment

(2) THE foremost contention of the learned counsel for the respondents has been, that the grounds of objections thus raised by the defendants 1 and 3 were as well, the grounds of attack or defence in the interlocutory application proceedings that culminated in the decree of the High Court in C, r. P, 45/76, As such, on the principle of res judicata the petitioners are debarred from re-agitating these grounds. The concept of res judicata has its genesis in the finality of litigation. It is fairly settled that the principle of res judicata can be invoked even in the Interlocutory proceedings arising out of the same suit. Most of the grounds thus adumbrated on behalf of the petitioners were no doubt the grounds of attack in the objections filed during the proceedings culminating from I. A. 43/75 which resulted with the decision of the High Court in C. R. P. 45/76. Besides, the other grounds related to matters which might and ought to have been made a ground of attack or defense in those proceedings. In that connection, reference can be made to the petition I, A. 45/75 which was instituted by defendants 2, 4 to 6 and the objections filed by defendants I and 3. Both the judgment of the learned Civil Judge as well as the decision of- the high Court in C. R. P. 45/75 indicate, that the question regarding vacant possession and the circumstances under which such- vacant possession could be awarded in favour of defendants 2, 4 to 6, the question regarding the stock-in-trade and direction relating thereto, the matter concerning the payment of estate duty and the question as to the excitability of the decree were very much points in dispute between the parties. It was objected to by the defendants I and 3 during those proceedings that the compromise decree by itself was not capable of being executed. It was rather pleaded that the compromise agreement, if at all; can be enforced in a suit for specific performance of that contract. The plea referable to the sale certificate was also raised and it was contended that unless the sale certificate was granted, vacant possession could not be thought of in favor of the defendants 2, 4 to 6, The learned single Judge of this court while deciding C. R. P, 45/76 decided all these questions and, in my opinion, that decision will certainly be res Judicata for the present proceeding.

(3) EVEN if any particular plea was not raised at that stage, and if it could be stated that the said plea might nd ought to have been raised as a ground of attack or I defense, it will be deemed a plea directly in issue and on that ground as well the decision arrived at in C. R. P. 45/76 will be res judicata in the present proceeding. Apart from this legal objection which, to my mind, should prevail, even otherwise there is no merit in any of the objections raised by the defendants I and 3.

(4) 1 would first take up the plea which relates to the compromise decree, as the learned counsel submitted that it was neither a preliminary decree nor even a decree in a suit for partition. The learned counsel submitted that it was only a declaratory decree defining the shares of the respective parties. This plea the learned counsel has not taken In his revision petition. He filed an application subsequently, seeking permission to take up that plea as according to him it is entirely based on a law point. Allowing him to take up that plea I propose to deal with it in the beginning. It has to be made clear that there are two compromise decrees one after the other and both must be construed together in order to arrive at a finding as to the nature of the decree that has been awarded. The first compromise decree merely stated as follows:

"The parties further agree that a decree be passed declaring that defendant I and defendant-3 are each entitled to 1/7th share and defendants 2, 4, 5 and 6 are each entitled to 5/28th share in the plaint schedule items except those in respect of which the suit is to be dismissed. " Therefore, the parties agreed that a decree be passed declaring these shares to be claimed by the defendants 1 to 6. After this first compromise decree, the second compromise decree that followed was as a result of the decision in C. R. P. 2920/73, In that decree a recital was made for vacant possession to be delivered either to the defendants I and 3 or to the defendants 2, 4 to 6 after payment of a specific amount as specified in the decree. The recital was also made for estate duty claim and also for the sale certificate which was to be issued in favour of the defendants requiring vacant possession. The cumulative effect of these two compromise decrees is nothing but' this, that the parties intended to partition the two properties in accordance with their respective shares and since the estate was impartibly either of the two groups were to get vacant possession after giving the value of the share to the other party. Therefore, it may not be correct to say that the decree awarded was not a preliminary decree or that it could not be classified as a decree in a suit for -partition. It was not the intention of any party to leave the matter as such after. declaration of their respective shares. The obvious intention was to take vacant possession which could only be done after payment of share belonging to the others, to whom vacant possession was not to be given. In a partition suit it is not essential that only one preliminary decree may follow. There may arise subsequent events which make it obligatory to pass another preliminary decree modifying the terms of the former and thereby setting at rest the various controversies which may be raised between the parties. The purpose of the preliminary decree is decidedly this that the terms settled by the court are executed and respective possessions are delivered after deciding equities between the parties. In fact, defendant-1 (the petitioner) while applying on 28-1-72 himself and-ked for preparation of a final decree as according to him the decree dated-26-11-1970 was a preliminary decree. He asked for the appointment of a Commissioner for division of the two properties by metes and bounds. The affidavit of A. Thakordas in that petition contained the following prayer:

"The said properties which are liable for Partition include both immovable and moveable and hence it is submitted that this Hon'ble Court may be pleased to issue a Commission to such person as it thinks fit, to make the partition according to the rights as decided in the preliminary decree dated 26-11-70 and to partition the immoveable properties by metes and bounds and thereafter this Hon'ble Court may be pleased to pass a final decree working out the relief's granted under the preliminary decree dated 26-11-1970. "

It is therefore evident that even the petitioner-defendant-1 considered the compromise decree as only a preliminary decree and asked for preparation of final decree for partition of the properties by metes and bounds. At one stage, the defendants 1 and 3 had both asked for being transposed as plaintiffs and in that connection also they expressed a clear desire that the properties were to be divided by metes and bounds and that they were entitled to possession over their respective shares in these properties. It was alleged on their behalf that even though they were arrayed as defendants in the suit, yet they could as much be considered as plaintiffs and hence entitled to a share in the properties by partition, It is manifest, that petitioner defendants 1 and 3 very much claim a share in the amount deposited, while at the same time, they question the right of the respondents-2 and 4 to 6 to get vacant possession of the premises. In my opinion, they cannot be permitted to reprobate and approbate at the same time because they nonetheless asked for execution of the compromise decree by enabling them to get payment while at the same time they denied the right of the respondent-defendants to get vacant possession. This situation is highly anomalous. Moreover, the daughters have already been awarded Rs. 70,000/each and to that extent the decree is satisfied. That part of the decree cannot be reopened or be set at naught by denying the respondent-defendants right to get vacant possession from the defendants 1 and 3. It may not therefore be correct to say that the respondent-defendants be asked to file a separate suit for enforcement of the compromise decree or that the decree itself is not capable of being executed. As held in Sukhpal Dass v. Kedarnath, (AIR 1941 Oudh 383) a preliminary decree for partition is really in declaratory nature and it is implicit in that decree that further proceedings are required to complete the partition. The principle that several preliminary decrees could be passed one after the other has been upheld in Subramania v. Thangammal, AIR1965 Mad 305 and in Poolchand v. Gopal Lal, AIR1967 SC 1470 , [1967 ]3 SCR153. The following observation of the court in a partition suit in Subramania (supra) is pertinent in this connection:"when the court is called upon to take the compromise into account and give directions in accordance with the compromise for the purpose of passing a final decree, the court cannot be considered as revising its earlier preliminary decree. but it will be really passing a fresh preliminary decree, taking into consideration subsequent developments. The court is competent to take into account the matters set out in the compromise, if the compromise is found to be genuine and binding on the parties and the court is entitled to embody it in a set of fresh directions for the purpose of passing a final decree, and the directions so issued should be construed as not an amendment to the preliminary decree already passed, but rather as a fresh preliminary decree, which it is open to the court, dealing with a partition suit to pass at any time till the stage of passing the final decree is over In Phoolchand (supra) in a partition suit the supreme Court held that after a preliminary decree is passed, the trial court can re-distribute the shares in consonance with subsequent events and prepare another preliminary decree on the basis of that re-distribution. Therefore, the two compromise decrees must be taken together to say that these were preliminary decrees one after the other and the real intention was to take up the proceedings for preparation of final decree. The learned counsel for the petitioners relied on Rup chand v. Kanhaya, (AIR 1940 Lah 202). gut the ratio of that decision shall not. be applicable, inasmuch as, in that case the court had passed a decree in favour of the plaintiffs and directed that the plaintiffs be put in possession of their shares. In fact, no partition of shares was accorded in favour of the defendants and it was held that the defendants could ask for amendment of the decree and only thereafter they could claim partition of their shares. In the present case, the preliminary decree has nonetheless defined the shares of each of the defendants.

(5) AS regards the estate duty, there was already a decision, as pointed out by the learned Civil judge, which culminated in an order made in favour of the Estate Duty Officer and the defendant-3 is liable to pay his share of the estate duty. That decision in 1. A. 47 became final and to that extent the question as to the liability of the defendant-3 could not be reagitated. As regards the stock in-trade, the High Court in C. R. P. 45/76 already gave a direction that the respective parties could apply for distribution of the stock-in-trade or for its preservation as the case may be. That apart, the question of delivery of vacant possession cannot be deferred because of the stock in-trade kept inside the commercial shop. The executing court can very well make a direction regarding thereto.

(6) THE contentions relating to the Urban Land Ceiling Act and the sale certificate to be issued in favour of the defendants 2, 4 to 6 it is again open to the executing court to make a compliance in accordance with law, with reference to that Act. If' permission is needed, the same may be accorded. At any rate, the delivery of vacant possession on the part of the defendants 1 and 3 should not be made to defer because of any such provisions in the Urban Land Ceiling Act. There is already a decision regarding the sale certificate in C. ,r. P. 45/76 and no further order need be made in regard thereto. In a partition suit, every party whether arrayed as plaintiff or defendant is substantially the plaintiff in a suit and is entitled to a decree and that he could move the court for a partition of his share. Being governed by this principle, the defendants inter se could certainly claim for a partition of their respective shares and especially in view of the compromise decree they could do so. The mere fact that at one stage some of the defendants were not permitted to be arrayed as plaintiffs, in my opinion, will not stand in their way for claiming a final decree for partition. It was therefore, rightly decided by the learned Civil Judge that the defendants 1 and 3 can only get payment of their share out of the amount deposited, provided the defendants 2, 4 to 6 get vacant possession of the two properties. However, the contention of the defendant-1 seems to be that he is not in possession of either of the properties and it is only the defendant-3 who may be in possession over them. The learned Civil Judge will not defer payment to the defendant-1 provided vacant possession is assured in favour of the defendants 2, 4 to 6. In view of what I have stated above, I do not find any compelling reason to interfere with the order of the learned Civil Judge.

(7) THE revision petition is there fore, dismissed with costs.

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