Decided on December 22,1967

INDR KUMAR Appellant
SHEO BAGAS Respondents


- (1.) ONE Sheocharan was the holder of lands, Khasra Nos. 484 /2, 513/2, 514/6 and 648/1. He transferred these lands to his brother Sheobagas by a registered sale-deed dated 1-3-1952. Sheobagas, in his turn, sold Khasra No. 484/2 to Bindabai by a registered deed dated 19-1-1953 and also sold Khasra No. 648/1 to Gendlal by another registered deed dated 14-4-1953.
(2.) ONE Mohanlal Sethi had obtained a decree for Rs. 890-3-0 against Sheocharan in Small Cause Suit No. 43 of 1950, decided on 15-9-1951. In execution of his decree Mohanlal attached all these lands on 20-2-1954. Sheobagas, Bindabai and Gendlal objected to the attachment under Order 21, rule 58 of the Code of Civil Procedure, and as their objections were dismissed, they filed separate suits being civil suits 89-A, 87-A and 88-A of 1956. In all the three suits Sheocharan and Mohanlal were impleaded as defendants. In these suits it was pleaded by Sheobagas, Bindabai and Gendlal that they had purchased the lands for value and were owners of the lands. Sheocharan in his written statement supported them, whereas Mohanlal contested their claim and pleaded that the sale-deeds were without consideration, fictitious and fraudulent and were made to defeat his claim. These suits were consolidated and decreed by the Second Civil Judge, Durg, on 20-7-1956. It was held that Sheobagas, Bindabai and Gendlal had valid title by virtue of their respective sale-deeds and the lands were not liable to be attached and sold in execution of the decree obtained by Mohanlal against Sheocharan. Appeals against the decrees in these suits were dismissed by the Additional District Judge, Durg, on 30-6-1958. Second appeals filed in the High Court were allowed by a Single Bench on 18-4-1960 but that decision was reversed in Letters Patent Appeals on 9-10-1961 restoring the decrees passed by the trial Court. Another creditor, Kapurchand, also obtained a decree for a sum of Rs. 1,571 against Sheocharan on 22-2-1954 in civil suit Nr.. 2-B of 1952 and in execution of this decree he also attached the aforesaid lands in July 1958. Objections under Order 21, rule 58 of the Code of Civil Procedure were filed by Sheobagas, Bindabai and Gendlal, being M. J. C. Nos. 35 to 37 of 1958. They were allowed on 22-12-1961 and the lands were released from attachment. Kapurchand then filed three suits, out of which the present appeals arise, under Order 21, rule 63 of the Code. Civil Suit No. 11-A of 1962 was against Sheobagas; civil suit No. 12-A of 1962 was against Gendlal; and civil suit No. 13-A of 1962 was against Bindabai. In all the three suits, Sheocharan being dead, his legal representatives were also joined as defendants. The plaintiff Kapurchand's case was that the sale-deed executed by Sheocharan in favour of Sheobagas and sale-deeds executed by the latter in favour of Gendlal and Bindabai were bogus, without consideration and were made with a view to defeat the creditors of Sheocharan. The defendants Sheobagas, Gendlal and Bindabai took a preliminary objection that the decisions in the earlier suits, which were filed by them against Sheocharan and creditor Mohanlal and in which their title was upheld, operate as res judicata against the plaintiff Kapurchand in the present suits. This objection was upheld by the trial Court and all the three suits were dismissed by a common judgment on 15-12-1963. The plaintiff Kapurchand then filed three appeals, civil appeal No. 4-A of 1963 in civil suit No. 11-A of 1962, civil appeal No. 5-A of 1963 in civil suit No. 12-A of 1962, and civil appeal No. 6-A of 1963 in civil suit No. 13-A of 1962. These appeals were decided, together and dismissed by the 2nd Additional District Judge, Durg, on 29-2-1964. The plaintiff then filed three second appeals in this Court; Second Appeal No. 318 of 1964 in civil suit No. 11-A of 1962, Second Appeal No. 320 of 1964 in civil suit No. 12-A of 1962, and Second Appeal No. 319 of 1964 in civil suit No. 13-A of 1962. Kapurchand, the plaintiff-appellant, died during the pendency of these appeals and his legal representatives were substituted as appellants in all the appeals.
(3.) THESE appeals raise a common question of res judicata and were heard together and are being disposed of by a common judgment. It must be noticed at the outset that Kapurchand, the plaintiff, in the present suits, was not a party in the former suits and unless it can be said that he is a person claiming under a party in those suits, the judgments rendered in them cannot operate as res judicata. It was submitted by Shri Khaskalam, the learned counsel for the respondents, that the judgment-debtor Sheocharan was a party in the former suits and the present plaintiff Kapurchand, who is a decree-holder, is a person who claims under him as he is laying claim to attach the suit properties on the ground that they belong to him. The learned counsel in support of his argument relied upon the following cases: Ramsewak v. Bahal,. A I E 1935 All. 888. Dinshaw and Company v. Anand Beharilal,. A I B 1942 Oudh 327. and Radharani v. Binodmoyec., A I R 1942 Cal. 92. It must be conceded that these cases do support his contention but for the reasons given hereafter, I am not prepared to accept that contention.;

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