Saturday, 23 March 2019

Whether judgment passed by court in previous suit will be res judicata if limitation for appeal or review has not expired?

The conspectus of the above authorities shows that until the limitation period for filing of an appeal is over, the res remains sub judice. After the limitation period is over, the res decided by the first Court would then become judicata. However, questions arise as to what is to be done in matters where the hearing in the second case is shortly after the limitation period for filing an appeal in the first case has ended. At least two judgments, one of the Privy Council and one of the Bombay High Court, have referred to the fact that, in appropriate cases, the hearing in the second case may be adjourned or may be stayed in order to await the outcome of the appeal in the first case. See, Chandra Singh Dudhoria v. Midnapore Zemindary Co. Ltd. MANU/PR/0018/1941 : (1941) 69 IA 51 (PC) at 58-59 and Indra Singh and Sons Ltd. v. Shiavax. C. Cambata, MANU/MH/0018/1950 : ILR 1948 Bom 346 at 352.

23. If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding. If, however, a sufficiently long period has elapsed after limitation has expired, and no appeal has yet been filed in the first proceeding, the Court hearing the second proceeding would be justified in treating the first proceeding as res judicata. No hard and fast Rule can be applied. The entire fact circumstance in each case must be looked at before deciding whether to proceed with the second proceeding on the basis of res judicata or to adjourn and/or stay the second proceeding to await the outcome in the first proceeding. Many factors have to be considered before exercising this discretion-for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding. 
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4233 of 2018 (Arising out of SLP (C) No. 25649 of 2017)

Decided On: 20.04.2018

Canara Bank Vs. N.G. Subbaraya Setty and Ors.


Hon'ble Judges/Coram:
A.K. Goel and Rohinton Fali Nariman, JJ.

Citation: (2018) 16 SCC 228.
Read full judgment here: Click here
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