9911796707
TMI Blog1993 (7) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are disposed of by this common order. 2. Before giving the facts, I am persuaded to observe that the case has an extraordinary chequered career and, therefore, demands settings out of facts elaborately. 3. The following are the undisputed facts:-The petitioner, as plaintiff, filed O.S. No. 8060 of 1973, on the file of the City Civil Court, Madras, for recovery of arrears of rent and for damages for use and occupation of the premises in the occupation of the deceased first respondent. That suit was decreed with costs on 15-2-1977. The deceased first respondent, aggrieved by the decree, preferred A.S. No. 407 of 1977, again on the file of the City Civil Court, Madras, which ended in a compromise, and a consent decree was passed on 21-9-1977. (Hereafter, for the sake of convenience, the petitioner will be referred to as 'decree holder' and the deceased first respondent will be referred to as 'judgment-debtor'). As per the terms of the consent decree, the judgment debtor was liable to pay the amount claimed in E.P. No. 797 of 1988, namely, ₹ 11,049-50.P. As the judgment-debtor was not possessed of property in Madras, but possessed properties within the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 7-3-1981, finding that inasmuch as the annual rental value of the building owned by the judgment debtor was ₹ 3,600/- as per Ex.B-1, the benefit of Act 13 of 1980 will not be available to him. (It may also be relevant to note here that the learned Subordinate Judge though dismissed E.A. No. 924 of 1980 on merits, did not take into consideration Section 12 of Act 13 of 1980, according to which, the decree against the judgment-debtor was exempted from the purview of the Act. The learned Subordinate Judge disposed of the application on the facts placed before him. He did not also refer to the Amendment introduced to Act 13 of 1980 with retrospective effect by Tamil Nadu Debt Relief (Amendment) Act 1981, which was published in the Tamil Nadu Gazette on 3-3-1981. As per this Amendment, the definition of 'debtor' underwent a radical change). 6. Aggrieved by the dismissal of E.A. No. 924 of 1980, the judgment debtor preferred on 3-4-1981 C.R.P. No. 1135 of 1981, on the file of this Court. Unfortunately, the learned counsel appearing for the decree-holder, for reasons with which we are not concerned now, was not present when the C.R.P. was taken up for final disposal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e E.P. No. 797 of 1988, mainly on the ground that the order in C.R.P. No. 1135 of 1981 stands in the way of the decree-holder from filing another E.P. on the principle of res judicata, also held that he entertained not doubt and dismissed the Application filed under order 46, Rule 1, C.P.C. even without numbering the same. Aggrieved by these two Orders, the present Civil Revision Petitions are filed, 9. Learned counsel for the petitioner, Mr. K. Rajah, in his elaborate and persistent argument, submitted that the court below went wrong in dismissing the Execution Petition as not maintainable on the basis of the dismissal of the earlier Execution Petition No. 40 of 1980 which was consequential to the order in C.R.P. No. 1135 of 1981. According to the learned counsel, the order in C.R.P. No. 1135 of 1981 passed in the absence of the counsel for the decree-holder (respondent before the learned judge) without noticing Section 12 of Tamil Nadu Act 13 of 1980 and again without noticing the provisions of the Tamil Nadu Debt Relief (Amendment) Act, 1981, introducing drastic change in the definition of 'debtor' and also Section 7 of the Amending Act, must be deemed as non-est in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R.P. No. 1135 of 1981. His contention was that the order in C.R.P. 1135 of 1981 operates as res judicate and, therefore, the Court below was right in dismissing the E.P. 797 of 1988. According to the learned counsel for the judgment debtor, the court below was also right in holding that the court entertained no doubt as the Court entertained no doubt and that there was no warrant for referring the matter to this Court as desired by the decree-holder in the Application filed under Order 46, Rule 1, C.P.C. 12. I have considered the rival submissions. 13. Before discussing further, it is necessary to bear in mind the relevant provisions of Act 13 of 1980 as well as Tamil Nadu Debt Relief (Amendment) Act, 1981. Act 13 of 1980 was first published in the Tamil Nadu Government Gazette on 19.4.1980. As per the said Act, Section 3(d) which defined debtor 6reads as follows :- debtor means any person from whom any debt is due and whose annual household income does not exceed four thousand and eight hundred rupees; Section 12 (a) and (d) read as follows:- 12. Certain debts and liabilities not to be affected. - Nothing in this Act shall apply to the following categories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... City Municipal Corporation Act, 1971, (Tamil Nadu Act 15 of 1971), the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act 35 of 1958), the Cantonments Act, 1924 (Central Act 2 of 1924) or any law governing Municipal or local bodies in this State or in any other State or Union territory in India. Explanation - Proviso (iv) shall apply only to a person whose annual household income exceeds four thousand and eight hundred rupees and such person shall not be deemed to be a debtor for the purposes of this Act, Section 7 of the Amending Act reads as follows :- 7. Removal of doubts. -(1) Where any person who was a debtor as defined in Section 3(a) of the principal Act as in force immediately before the 20th November, 1980, has ceased to be a debtor on and after that date by virtue of the amendments made by this Act to the principal Act, any debt due from such person shall be deemed never to have been discharged, every suit or other proceeding (including appeal, revision, attachment or execution proceeding) in relation to such debt pending at the commencement of the principal Act against the debtor for the recovery of any such debt (including interest, if any) shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to. 17. In A.I.R. 1963 Pun 225 (supra), a Division Bench of that Court has held that there can be no estoppel against a Statute, nor can the principle of res judicata be invoked when there is a change of law. 18. In A.I.R. 1968 Guj 257 (supra), a learned single judge, while considering the scope of Section 11, C.P.C. has held as follows:- If the effect of the law has been differently interpreted by judicial decisions or altered by statute, the previous decision between the same parties cannot have the binding effect for all time and it cannot, therefore, operate as res judicata with regard to the same question in a subsequent proceeding, In other words, in order to attract the doctrine of res judicata, the law applicable to the subject-matter at both the times must be the same. Not only that, but even different causes of action by reason of change of circumstances can remove any such bar of a previous decision or a finding of the Court, in a subsequent proceeding. It follows, therefore, that there must exist the same subject-matter or that they are litigating under the same title, and for that the same effect of law must prevail at both the times, before the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. The authorities on the question whether a decision on a question of a law operates as res judicata disclose widely differing views. In some cases it was decided that a decision on a question of law can never be res judicata in a subsequent proceeding between the same parties: Parthasardhi Ayyangar v. Chinnakrishna Ayyangar; Chamanlal v. Bapudhai; and Kanta Devi v. Kalawati. On the other hand, Aikman. J., in Chandi Prasad v. Maharaja Mahendra Mahendra Singh held that a decision on a question of law is always res judicata. But as observed by Rankin, C.J., in Tarini Charon Bhattacharjee v. Kedar Nath Halder: Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties: Tarini Charan Bhattacharjee's case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different. In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judicata has no application; see Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charon Bhattacharjee's case: The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned judge flows from the language used in section 4 as compared to Sections 5 and 6 of the Act. When Sections 5 and 6 specifically confer upon the Tahsildar the power to give a certificate of discharge as regards a pledge debt as well as a mortgage debt, no such power has been given to the Tahsildar in respect of money claims which are pending before a civil courts Therefore, we are in entire agreement with the view taken by Ratnam, J., in the above case. Therefore, the third respondent in this case, who is the respondent in the Execution petition in E.P. No. 525 of 1979 has to agitate the question as to whether he is entitled to the benefits of Section 4 of Act XIII of 1980 before the executing Court, and he cannot approach the Tahsildar or the Appellate Authority for getting a certificate of discharge of money claims which are pending before the civil Court. 21. In 1985 Writ L.R. 1 = 98 L.W. 17, (supra), a Full Bench of this Court explained the effect of a judgment rendered in ignorance of the provisions of a Statute, as follows:- While referring to the exception to the rule of stare decisis, it is observed in 'Precedent in English Law' by Rupert Cross, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In 1993 (2) SCC 470 (supra), the Supreme Court has observed as follows :- It is no doubt true that on account of the order dated April 2, 1990 both the parties have been put to an enormous cost but this cannot be a justification for entertaining a controversy which did not arise even remotely in the main Special Leave Petition and which could only be decided by way of regular substantive proceedings in the lowest court of competent jurisdiction. This Court cannot entertain and decide the question of title in respect of an immovable property raised for the first time before this Court by way of an interim application in a dismissed Special Leave Petition There is no question of any acquiescence, waiver or estoppel against a party where the error is committed by the Court itself. This Court is under a bounden duty to correct its own mistake. So far as the case of Union Carbide Corporation v. Union of India a is concerned the same has no relevance and can be of no assistance at ail to the applicant-company in the facts and circumstances of the present case. The principle laid down in Saryadhyan case and Y.B. Patil is to the effect that the principle of res judicata can be i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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