BAI CHANCHAL WIDOW OF CHHAGANBHAI JIBHAI Vs. BAI SURAJ WIDOW OF RANCHHODBHAI CHHAGANBHAI

JUDGEMENT

(1.) This revision application is against an order of the District Judge of Broach, holding that an appeal before him was not barred by res judicata. A preliminary objection was taken by the learned counsel for the opponents, and he contends that when the lower Court has decided a question of res judicata, no revision lies, and he relies on Amir Hassan Khan v. Sheo Baksh Singh, ILR 11 Cal 6 (PC).

(2.) In ILR 11 Cal 6 (PC), their Lordships of the Privy Council were dealing with the application of Sections 13 and 43 of Act X of 1877 and also Section 622 of Act X of 1877 as amended by Section 92 of Act XII of 1879. In the case before their Lordships certain properties were mortgaged amongst 8 co-sharers and the right to redeem was afterwards contested by them in an application to the District Court. Subsequently, a suit was filed under Act XXXII of 1871, namely the Oudh Civil Court Act, in the Court of Extra Assistant Commissioner by one Raja Amir Hassan Khan, who sued one Sheo Baksh to give possession on redemption from mortgage of a three-fourths share in a taluq named Khanpur, comprising six villages in Sitapur, on payment of the mortgage debt. A decree in favour of the plaintiff was passed by the Extra Assistant Commissioner which was confirmed by the District Judge of Sitapur. According to Section 21 of Act XIII of 1879, there was no appeal from the decision of the District Judge of Sitapur to the Judicial Commissioner, but the Judicial Commissioner purported to exercise revisional jurisdiction. Their Lordships of the Privy Council held that the Judges of the lower Courts had perfect jurisdiction to decide the question which was before them. Their Lordships also observed that whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction, illegally or with material irregularity. Their lordships of the Privy Council therefore allowed the appeal before them and reversed the judgment of the Judicial commissioner. It appears from the report, that the suit raises questions as to whether it was barred under Section 13 and 43 of Act X of 1877 and whether the plaintiff was entitled to reimburse the mortgagor and whether it was competent to claim to redeem the mortgaged property.

(3.) The question involved in the instant case is one of res judicata. Section 11 of the Civil Procedure code, which deals with the question of res judicata, reads as follows: