- (1.) Leave granted. The conflict of judicial opinion among the High Courts in interpretation of Explanation VIII to Section 11 of the Code of Civil Procedure, as introduced by the Code of Civil Procedure (Amendment) Act, 1976, is to be resolved in this appeal. Kutty Amma executed Udambadi (settlement deed) on May 19, 1961 giving life-estate to her husband Krishnan Nair, for short 'K', and vested remainder in favour of the respondent. She died in the year 1971. 'K' alienated the property in 1972 by a registered sale deed in favour of Narayanan Nair and Chenan. The respondent filed O.S. No. 151 of 1972 in the District Munsif Court to restrain 'K' from alienating the properties and committing acts of waste. Pending the suit, the appellant purchased the suit property on April 7, 1975 under Ex. B-1 from Narayanan Nair and Chennan. The trial Court, by its judgment and decree, Ex. A-2, dated November 18, 1975 decreed the suit holding that 'K' had no right to alienate the lands and permanent injunction was issued restraining him from committing acts of waste. The appeal in A. S. No. 31 of 1976 by 'K' was dismissed under Ex. A-4 on June 9,1978. The appellant, being not a party to the earlier suit, when he was committing acts of waste, the respondent filed O.S. No. 237 of 1975 against 'K' and the appellant for perpetual injunction restraining them from committing the acts of waste. The suit was decreed under Ex. A-5, on October 22, 1981. Therein the validity of the appellant's title was left open. The respondent filed O.S. No. 61 of 1982 in the Court of Subordinate Judge for declaration of his title and possession against the appellant. The trial Court by judgment and decree dated October 14, 1986, decreed the suit and granted mesne profits. On appeal, it was confirmed. The second appeal was dismissed. Thus this appeal by special leave.
(2.) The concurrent findings recorded by all the Courts are that the appellant being successor in title and interest of'K', is bound by the decrees under Exs. A-2 to A-5 and did not acquire any title under Ex. B-l. The transfer in his favour was only the life-estate of 'K' and on his demise the estate of Kutty Amma stands vested in the respondent. Thus the present dispute is concluded by those judgments and decrees by the principle of res judicata.
(3.) The valiant effort of Sri Sukumaran, the learned senior counsel, in his effective pursuasion and meticulous preparation is that Section 11 and Explanation VIII should be read harmoniously. The Amending Act of 1976 made no attempt to delete the words "Court competent to try such" suit in the main section, which would indicate that the legislature intended to retain the distinction between judgments of the Court of limited pecuniary jurisdiction, which will not operate as res judicata to a later suit laid in a Court of unlimited jurisdiction, on the same issue between the same parties or persons under whom they claim title or litigating under the same title. Explanation VIII only brings within the fold of Section 11, the decree or order of the Courts of special jurisdiction, like probate Court, land acquisition Court, rent control Court, etc. The non obstante clause incorporated in Explanation VIII would be only in relation to such decrees. The purpose of the explanation, therefore, is only to remove that anomaly. The legislature having been aware of the law laid down by Courts, that the decree of a Court of limited pecuniary jurisdiction does not operate as res judicata in a subsequent suit, did not intend to alter the law by suitable amendment to the body of Section 11. It was urged that the view of the Calcutta High Court in Nabin Majhi v. Tele Majhi, AIR 1978 Cal 440 and Pramode Ranjan Banerjee v. Nirapada Mondal, AIR 1980 Cal 181, is correct interpretation and the contra views of the Kerala High Court in P.V.N. Devoki Amma v. P.V.N. Kunhi Raman, AIR 1980 Ker 230, Orissa High Court in Kumarmoni Sa v. Himachal Sahu, AIR 1981 Orissa 177 and C. Arumugathan v. S. Muthusamy Naidu, (1991) 1 Mad LW 63 are not correct.;