Plea that decree passed in earlier proceedings was collusive - That it would not operate as resjudicata - Can be raised in latter proceedings - Filing of separate suit for declaration that decree was collusive - Not a condition precedent for raising such plea.

Citation

AIR 2000 SUPREME COURT 3272

SUPREME COURT

(From : Punjab and Haryana)

M. JAGANNADHA RAO , J. and K. G. BALAKRISHNAN , J.

Civil Appeal No. 5467 of 2000 (arising out of SLP (C) No. 18973 of 1999), D/- 27 - 9 - 2000

Gram Panchayat of Village Naulakha Appellant v. Ujagar Singh and others Respondents.

(A)Civil P.C. (5 of 1908), S.11 - Evidence Act (1 of 1872), S.44 - Res judicata - Collusive decree

- Plea that decree passed in earlier proceedings was collusive - That it would not operate as res

judicata - Can be raised in latter proceedings - Filing of separate suit for declaration that decree

was collusive - Not a condition precedent for raising such plea - Principle applies to proceedings

under S. 7 of Punjab Act. Punjab Village Common Lands (Regulation) Act (18 of 1961), S.7 -

AIR 1991 Punj and Har 159, Overruled.

In order to contend in a latter suit or proceeding that an earlier judgment was obtained by collusion,

it is not necessary to file an independent suit for a declaration as to its collusive nature or for setting

it aside, as a condition precedent. A contrary view would go against the provisions of Section 44 of

the Evidence Act. That section provides that any party to a suit or proceeding may show that any

judgment, order or decree which is relevant under Sections 40, 41, 42 and which has been delivered

by a Court not competent to deliver it or was obtained by fraud or collusion.

 (Paras 5 , 6 , 7) 

It cannot be said that it was not open to the statutory authorities under the Punjab Act to go into the

collusive nature of earlier suit in the proceedings under S. 7 of the Punjab Act. More so when the

earlier suit against the Panchayat was only a suit for injunction and not one on title and no question

of title was gone into nor decided, the decision cannot be binding on the question of title.

AIR 1991 Punj and Har 159, Overruled.

 (Paras 11 , 10) 

(B)Civil P.C. (5 of 1908), S.11 - Res judicata - Decision in suit for injunction - Not binding on

question of title - Even though issue on title was framed in that suit and incidental finding on

question of title was given.

 (Para 10)