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TMI Blog1920 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... en rightly dismissed by the Lower Appellate Court. The Lower Appellate Court held that in the absence of any special provision or usage the office devolved on the nominee of the last Muttawalli, and declined to allow the plaintiff to set up a case of usage which had been abandoned in the Lower Court and which was not proved. In the present case the plaintiff has pleaded that he is entitled to succeed by the usage of the institution, and the defendant, whilst admitting that the plaintiff's father was an hereditary holder of the Yeomiah allowance, has denied the plaintiff's right and also relied on the decree in the previous suit as barring the present suit. 2. As regards the general question our decision should in my opinion be based on the provisions of the Civil Procedure Code and the Evidence Act and on the English Law on which they are founded. The Privy Council in Imambandi v. Mutsaddi (1918) I.L.R. 45 Cal. 878 at 904 P.C. has deprecated the practice of referring to foreign decisions and observed that the judgments of foreign Courts based often on considerations and conditions totally differing from those applicable or prevailing in India are only likely to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions as to the general effect of previous judgments in evidence. Section 41 makes certain judgments of a Court in the exercise of a Probate, Matrimonial, Admiralty or Insolvency Jurisdiction not only relevant but conclusive evidence of certain matters. Having dealt with such judgments, which are usually known as judgments in rem, the Act goes on to deal with other judgments generally known as judgments in personal, and provides in Section 42 that they are relevant if they relate to matters of a public nature relevant to the inquiry, but are not conclusive proof of what they state, and in Section 43 that all other judgments are irrelevant unless the existence of such judgment is a fact in issue or relevant under some other provision of this Act, and under those other provisions the judgment may be relevant but cannot be conclusive in law though it may in fact. Thus in Brew v. Haren 9 Ir. C.L. 29 and 11 Ir. C.L. 198 where the question was whether the plaintiff was the owner of the foreshore, the facts that he had successfully prevented people from taking seaweed from the shore and that he had instituted a Suit for trespass in which there was a reference to arbitration and an awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in personam bind only parties and their privies. 5. The Judgment in Ramamurthi Dhora v. The Secretary of State for India in Council (1911) I.L.R. 36 Mad. 141 after referring to some dicta of Lord Coke which it is now admitted apply to judgments in rem, quotes the following extract from Bigelow if all who have a right to appear and be heard in a cause have been duly made parties the judgment establishes a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, bind, third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it and that the question should be determined without collusion. Judgment that A is debtor of B is an example. 6. Indeed, the difference between Judgments in rem and judgments in personam in any law, as regards their effect, appears at bottom to be only a difference of degree . However attractive this doctrine may appear to be, it is in my opinion opposed to the provisions of the Indian Evidence Act, which was not referred to either in this or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this country which would support the return of any other answer but an affirmative one to the question referred to us. Kumaraswami Sastri, J. 11. The question raised by the reference, is whether it is open to a party to reassert as against a third person a title, which has been definitely negatived in a previous suit against a contesting claimant. The judgment which is pleaded in bar is a judgment in a previous suit filed by the present plaintiff against two other persons for a declaration that he was entitled to the Asari Sheriff and to recover from the Government the emoluments of the office. It was held in that suit that the plaintiff did not prove title to the office and the suit was dismissed. The present suit is filed by the plaintiff against the Government to recover a sum of ₹ 394 alleged to be due to him as the person entitled to the Asari Sheriff and to perform the services connected therewith. The Government was paying the sums to the successful party in the previous litigation and sets up the judgment negativing the plaintiff's right as a bar to the suit. 12. The question is how far and under what circumstances can a judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be allowed to disprove the facts established by such judgments. Section 42 refers to judgments relating to matters of a public nature relevant to the enquiry and the section states that such judgments, though evidence, are not conclusive proof of that which they state, thus allowing evidence to be given to disprove the facts found in the judgments. Section 43 says that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of the Act (e.g. Section 13). Section 44 enables a party to show that any judgment, order or decree which is relevant under Section 40, 41 or 42, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. 15. In dealing with this question, I think the distinction between the effect of a judgment as preventing the Court from trying the same matter in issue in subsequent proceedings and as simply affording evidence of the truth or falsity of the claim under consideration should be borne in mind. In the former case Section 11 declares that the Court shall not try ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment established a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment, in an action strictly in personam, indeed, binds third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the question should be determined without collusion. Indeed, the difference between judgments in rem and judgments in personam in our law, as regards their effect, appears at bottom to be only a difference of degree. Where a judgment is in personam I can find no authority either in English decisions or recognised works by English decisions or recognised works by English Jurists holding that it can prevent persons, not parties or privies, from agitating the question except in cases of joint liability and covenants for indemnity. In The Natal Land, etc. Co. v. Good (1868) L.R. 2 P.C.A. 121 it was sought to use a judgment between the mortgagor and the person from whom he purchased the property which found that the sale was vitiated by fraud against a mortgagee who was no party to the suit. Their Lordships of the Privy Council observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghway would not bar a suit by the same person against another for stopping at the road on the ground that the Crown and subject were the parties to the indictment and therefore it was not between the two parties to the action and that the judgment in the indictment may be given as evidence upon the trial of the issue as to whether the locus in quo is a public highway ; though it cannot be pleaded as an estoppel. 17. Estoppel must be mutual and it is difficult to see how a party not bound by a judgment can set it up in bar against a party to it. 18. Turning to the question as to whether a judgment in personam can acquire the force of a judgment in rem under any given set of facts, the only authority which I can find for such a view is the passage from Bigelow already referred to and the decision in Cander v. Lord 2 N.Y. 289 referred to in Sreenivasa Iyengar v. Arayar Srinivasa lyangar (1910) 3 Mad. 373 as authority for the view taken in that case. 19. With all respect it seems to me that we cannot travel outside the provision of Section 11 of the Code of Civil Procedure and apply the rule of res judicata to cases falling outside the limitation imposed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agiri Iyer, J., in Second Appeal No. 1747 of 1919. The learned Judges were of opinion that the provisions of the Code as to res judicata were exhaustive and that a judgment not between the same parties or their privies was only evidence of title. They were not prepared to follow Ramamurthi Dhora v. The Secretary of State for India in Council (1911) I.L.R. 36 Mad. 141 and Suppa Bhattar v. Suppu Sokkayya Bhattar (1914) 29 M.L.J. 558 on the ground that the attention of the learned Judges was not drawn to the decision of the Privy Council in Gokul Mandar v. Pudmanand Singh (1902) I.L.R. 29 Cal. 707. In The Ramnad Zamindar v. Doraswami (1884) I.L.R. 7 Mad. 341 which related to a monthly allowance, it was held that a litigation as regards the right to receive the allowance would not estop the Zamindar from putting the party claiming it against him to the proot of his title on the ground that he was not a party to the previous litigation. So far, therefore, as the Civil Procedure Code is concerned, I do not think that the trial of a suit or issue can be barred because of an adjudication in a prior suit or proceeding to which the plaintiff was not a party or privy. 20. Turning to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive proof. 23. It seems to me that where a judgment in personam is pleaded, its legal effect and probative force will depend upon the facts of each case. As pointed out by Sir Lawrence Jenkins in the case I have referred to, the judgment of a competent Court whereby a declaration is made as regards property in dispute would have the force of a conveyance by the other parties to the suit in favour of the successful litigant. Where, therefore, all the parties interested in the immoveable property or, in the right in contest have been parties to the previous litigation it may be that the judgment obtained in the previous litigation would render it impossible for persons to get rid of the effect of the judgment. 15ut this is not because the judgment constitutes res judicata of judgments in rem. The difficulty would be analagous to the difficulty of a person who wants to impeach the title which is conferred on his opponent by all the persons who could have a legal interest in the property with the additional fact that when a judgment is relevant it is not open to a party to show that as between the parties the conclusion arrived at by the Judge is wrong and is not warranted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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