1993 (7) TMI 352 - HC - Indian Laws

Summary

Issues Involved:
1. Dismissal of Execution Petition (E.P. No. 797 of 1988).
2. Application under Order 46, Rule 1 read with Section 151, C.P.C. (SR. No. 2695 of 1990).
3. Application of Tamil Nadu Debt Relief Act 13 of 1980 and its Amendment Act of 1981.
4. Principle of res judicata and its applicability.
5. Non-est and per incuriam judgments.

Detailed Analysis:

1. Dismissal of Execution Petition (E.P. No. 797 of 1988)
The petitioner, as a decree-holder, filed E.P. No. 797 of 1988 for recovery of arrears of rent and damages for use and occupation. The 8th Assistant Judge, City Civil Court, Madras, dismissed this E.P. on the basis of a prior order in C.R.P. No. 1135 of 1981, which had allowed the judgment-debtor's claim under the Tamil Nadu Debt Relief Act 13 of 1980. The court below held that the earlier C.R.P. order operated as res judicata, thereby barring the current execution petition.

2. Application under Order 46, Rule 1 read with Section 151, C.P.C. (SR. No. 2695 of 1990)
The decree-holder filed an application under Order 46, Rule 1, C.P.C., requesting the court to refer the matter to the High Court for clarification. The 8th Assistant Judge dismissed this application without numbering it, stating that no doubt was entertained regarding the applicability of the Tamil Nadu Debt Relief Act and its amendments.

3. Application of Tamil Nadu Debt Relief Act 13 of 1980 and its Amendment Act of 1981
The judgment-debtor claimed relief under the Tamil Nadu Debt Relief Act 13 of 1980, asserting he was a debtor as per the Act. However, the decree-holder argued that the decree for arrears of rent and damages for use and occupation was exempt from the Act's provisions under Section 12(a) and (d). The Amendment Act of 1981 introduced significant changes, particularly in the definition of "debtor," which excluded individuals with an annual rental income exceeding Rs. 3,600. The court noted that the judgment-debtor's annual rental income was Rs. 3,600, thus disqualifying him from the benefits of the Act, rendering the previous C.R.P. order erroneous.

4. Principle of res judicata and its applicability
The court discussed the principle of res judicata, which prevents re-litigation of issues already decided between the same parties. However, it was emphasized that res judicata does not apply if there is a change in the law or if the previous decision was made without considering relevant statutory provisions. The court cited several judgments, including A.I.R. 1963 Pun 225 and A.I.R. 1971 S.C. 2355, to support this view. The court concluded that the order in C.R.P. No. 1135 of 1981, made without considering the amendments and relevant statutory provisions, could not operate as res judicata.

5. Non-est and per incuriam judgments
The court held that the order in C.R.P. No. 1135 of 1981 was non-est in law, as it was given without noticing the relevant statutory provisions, including Section 12(a) and (d) of the Tamil Nadu Debt Relief Act and the Amendment Act of 1981. The court cited the principle that judgments rendered per incuriam, i.e., in ignorance of relevant statutory provisions, do not have binding force. The court referred to the Supreme Court's judgment in 1993 (2) SCC 470, which emphasized the duty of courts to correct their own errors. Consequently, the court allowed C.R.P. No. 1795 of 1990, restoring E.P. No. 797 of 1988 for further proceedings.

Conclusion:
C.R.P. No. 1795 of 1990 is allowed, and E.P. No. 797 of 1988 is restored for further proceedings. No detailed order is necessary in C.R.P. No. 1946 of 1990, except to note that the lower court should have numbered and considered the application under Order 46, Rule 1, C.P.C. instead of dismissing it without numbering.