Case Note & Summary
The present appeal arose from a partition suit concerning ancestral property known as 'Haveli Dewan Singh Wali' at Phagwara, belonging to one Dewan Singh, the common ancestor of the parties. Dewan Singh left behind four sons, Rattan Singh, Kapoor Singh, Boor Singh, and Gurdit Singh. In 1926, Boor Singh filed a partition suit in respect of the houses and mansion left by Dewan Singh, including the said Haveli. The matter was referred to arbitration. The reference was signed by the sons of Boor Singh, namely Karam Singh, Harnam Singh, Balbir Singh, and Amrik Singh (with Harnam Singh signing as guardian for minor Amrik Singh), as well as Kapoor Singh, Dalip Singh son of Rattan Singh, and Balwant Singh son of Gurdit Singh. Gurdit Singh had another son, Harbans Singh, who did not contest the suit and was not a party to the reference. The arbitrator gave an award, and a decree in terms of the award was passed by the Magistrate First Class, Tehsil Phagwara, Kapurthala State, in 1930. On 24 October 1967, Harnam Singh and Amrik Singh, sons of Boor Singh, along with the widow and daughter of Balbir Singh (another son of Boor Singh), filed a fresh suit for partition of the same Haveli against Karam Singh (another son of Boor Singh) and the sons of Gurdit Singh, Kapoor Singh, and Rattan Singh. The defendants pleaded that the suit was barred by res judicata in view of the 1930 decree. The trial court decreed the suit, the first appeal was dismissed, and the High Court dismissed the second appeal. The branch of Balwant Singh son of Gurdit Singh then appealed to the Supreme Court. The appellants contended that the 1930 decree was binding on all branches because each was a party to the earlier suit and arbitration reference. The respondents argued that the decree could not operate as res judicata because Harbans Singh, the second son of Gurdit Singh, was not a party to the arbitration reference, and further that no notice of filing of the award was served, rendering the decree a nullity. The Supreme Court rejected both contentions. It held that if anyone could challenge the award on the ground of Harbans Singh's non-participation, it was Harbans Singh himself, but neither Harbans Singh nor his son Shivjit Singh, defendant No.2 in the present suit, had ever challenged it. The respondents, who were parties to the reference and the decree, could not disown the decree on that ground. On the notice issue, the Court examined the order sheet of the Magistrate and found that the award was made a rule of court after service of notice on the parties, who were informed in writing as required by law. No proceedings were ever taken to set aside the decree. The Court emphasized that so long as the decree stands and has not been set aside, it is binding and cannot be ignored. Moreover, the absence of notice was not pleaded in the plaint or raised before the trial court or first appellate court; it was raised for the first time in second appeal before the High Court. The Supreme Court held that the High Court erred in treating the decree as non est on a presumed absence of notice. Consequently, the suit was barred by res judicata. The appeal was allowed, the judgment and decree of the High Court were set aside, and the plaintiffs' suit was dismissed with costs.
Headnote
A) Civil Procedure - Res Judicata - Binding Effect of Prior Arbitration Award/Decree - Code of Civil Procedure, 1908, Section 11 - The earlier partition suit of 1926 and the decree passed in terms of the arbitration award pertained to the same property. All branches of the common ancestor were parties to the reference except one non-contesting son who never challenged the award. The court held that parties who were party to the reference and decree cannot disown the decree merely because one branch member was not a party to the arbitration. Held that the decree is binding and operates as res judicata (Paras 1-4). B) Civil Procedure - Validity of Decree - Want of Notice of Filing Award Not Fatal Unless Challenged - Code of Civil Procedure, 1908, Section 11 - The respondents contended that the 1930 decree was a nullity because no notice of filing of the award was served. The court found that the order sheet recorded service of notice in writing and no proceedings to set aside the decree were ever taken. So long as the decree stands and has not been set aside, it is binding and cannot be ignored. Held that absence of notice cannot render decree non est (Paras 1-4). C) Civil Procedure - Second Appeal - New Plea Not Raised in Plaint or Lower Courts - Code of Civil Procedure, 1908, Section 100 - The objection regarding absence of notice of filing of award was not raised in the plaint, trial court, or first appellate court; it was raised for the first time in second appeal. The High Court erroneously accepted it. Held that a new ground not raised earlier cannot be allowed in second appeal and the suit is barred by res judicata (Paras 1-4).
Issue of Consideration
Whether the suit for partition filed in 1967 was barred by res judicata due to the earlier partition decree of 1930? Whether the earlier decree could be treated as non est for want of notice of filing of the arbitration award? Whether the objection as to absence of notice could be raised for the first time in second appeal?
Final Decision
Appeal allowed; judgment and decree of the High Court set aside; suit of the plaintiffs dismissed with costs as barred by res judicata.
Law Points
- A decree passed in terms of an arbitration award operates as res judicata against parties to the earlier suit
- absence of notice of filing of an award cannot render a decree non est unless challenged
- grounds not raised in lower courts cannot be taken for the first time in second appeal
