Supreme court explains the distinction between the doctrine of Precedent and Res Judicata

There is a clear conceptual distinction between precedent and res judicata. Salmond on Jurisprudence P.J. Fitzgerald (12th Edition) page 141 states "a judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it, and the courts are bound to follow the law that is so established". A decision between two parties which sets out a principle of law will operate as a precedent for disputes between two other parties too. A precedent operates in rem. In contrast, a res judicata operates in personam between the same parties either in the later stage of the same litigation between them or in a different litigation between them. That is the essential distinction between the two. {Para 24}

Res judicata operates in personam i.e. the matter in issue between the same parties in the former litigation, while law of precedent operates in rem i.e. the law once settled is binding on all under the jurisdiction of the High Court and the Supreme Court. Res judicata binds the parties to the proceedings for the reason that there should be an end to the litigation and therefore, subsequent proceeding inter se parties to the litigation is barred. Therefore, law of res judicata concerns the same matter, while law of precedent concerns application of law in a similar issue. In res judicata, the correctness of the decision is normally immaterial and it does not matter whether the previous decision was right or wrong, unless the erroneous determination relates to the jurisdictional matter of that body. [See Makhija Construction & Engg. (P) Ltd. v. Indore Development Authority,   MANU/SC/0302/2005 : (2005) 6 SCC 304]]

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 753 of 2026 

Decided On: 04.02.2026

Eminent Colonizers Private Limited Vs. Rajasthan Housing Board and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J

Citation: 2026 INSC 116, MANU/SC/0116/2026.

Read full judgment here: Click here.

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Important judgments and articles on right in rem and right in personam

 

Q 1:- What is difference between right in rem and right in personam with reference to Arbitration proceeding?

A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. 

27. An agreement to sell or an agreement to mortgage does not involve any transfer of right in rem but create only a personal obligation. Therefore if specific performance is sought either in regard to an agreement to sell or an agreement to mortgage, the claim for specific performance will be arbitrable. 

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Rights in Rem vs Rights in Personam: Understanding the Fundamental Distinction in Indian Jurisprudence with Special Reference to Section 35 of Bharatiya Sakshya Adhiniyam

 Introduction

The distinction between rights in rem and rights in personam forms the bedrock of legal understanding in property law, contract law, and procedural jurisprudence. This fundamental classification, deeply rooted in Roman law and adopted into Indian legal system through English common law, determines how rights are enforced, against whom they can be exercised, and their scope of application. The recent Bharatiya Sakshya Adhiniyam (BSA), particularly Section 35, provides a compelling illustration of how this distinction operates in contemporary Indian law, especially regarding judgments that confer legal character.

Conceptual Framework: Defining the Rights

Rights in Rem (Jus in Rem)

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What is difference between right in rem and right in personam with reference to Indian law?

 In the context of Indian law, as well as general legal theory, the distinction between rights in rem and rights in personam is fundamental. Here's a detailed explanation:

Right in Rem

Definition: A right in rem (Latin for "right against the thing") is a right enforceable against the world at large. It is a proprietary right that relates to property (real or personal) and is good against anyone who interferes with the holder's enjoyment of that property.

Characteristics:

1. Universal Applicability: The holder can assert this right against any person in the world.
2. Property-Oriented: It is related to ownership or possession of property.
3. Permanent: Usually, these rights are enduring unless legally transferred or relinquished.

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What is difference between right in rem and right in personam with reference to Arbitration proceeding?

A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide: Black's Law Dictionary). Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable.

27. An agreement to sell or an agreement to mortgage does not involve any transfer of right in rem but create only a personal obligation. Therefore if specific performance is sought either in regard to an agreement to sell or an agreement to mortgage, the claim for specific performance will be arbitrable. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5440 of 2002

Decided On: 15.04.2011

Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Author: R.V. Raveendran, J.

Citation:  MANU/SC/0533/2011,(2011) 5 SCC 532

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Supreme Court: Court can refer Suit for cancellation of the deed on the ground of fraud U/S 31 of the Specific Relief Act to Arbitration

1) It is submitted that while considering the application

u/s 8 of Arbitration and Conciliation Act, 1996, the court

has to consider an issue that whether there exists any

Arbitration Agreement between the parties. Such right

is certainly vested in Civil Court. The Plaintiff is

challenging the legality of agreement dated 20.05.2006

on the ground that the same is obtained by fraud and

is therefore seeking further declaration that the said

agreement is null and ab initio void. As such, the very

Arbitration clause as contained in the said agreement

is not enforceable. In spite of the fact that Section 16

of the said Act empowers the Arbitral Tribunal to

decide its own jurisdiction in view of particular

circumstances narrated in the plaint, the present

application deserves to be rejected.”

v. By a judgment dated 19.07.2011, the Additional Judge, Small

Causes Court, Pune, after hearing both sides, held as follows:

“11. After perusing the above mentioned cited cases, it

shows that when there is a clause of arbitration it is

mandated on the Civil Court to refer the dispute and

parties for arbitration as per agreement. In present

case the plaintiffs have materially contention about

playing fraud by Defendant No.3 but there is no any

contents in agreement as alleged by plaintiff in plaint

about keeping faith on Defendant No.3. It shows about

signing by Defendant No.3 for agreement dated

20.05.2006 and he was also party to said agreement.

The plaintiff alleged about playing fraud after resigning

by Defendant No.3 from partnership firm of Defendant

No.1 and signing the confirmation deed dated

13.07.2006 but as per Partnership Act remedy is

provided. Moreover, from the documents, it shows that

the confirmation deed dated 13.07.2007 was executed

by Defendant No.3 as Authorized Partner of M/s

Regency Mahavir Properties and another partner Dilip

Jain. The fraud alleged by the plaintiff is in respect of

the documents for which the remedy is also provided.

After considering the arbitration clause I find that the

application is to be allowed and the disputes have to

be referred for arbitration. Hence, I pass the following

order:

1) Application is allowed.

2) The plaintiff is directed to get the alleged dispute

resolved through the process of arbitration by

referring the plaintiff to invoke the process of

arbitration as per the arbitration clause 14

mentioned in the agreement dated 20.05.2006.”

Finding thus, the learned Judge referred the parties to arbitration.

2) High court dismissed writ petition with the result that the

parties stood referred to arbitration.

3) When sections 34 and 35 are seen, the position becomes even

clearer. Unlike section 31, under section 34, any person entitled to

any legal character may institute a suit for a declaration that he is

so entitled. Considering that it is possible to argue on a reading of

this provision that the legal character so declared may be against

the entire world, section 35 follows, making it clear that such

declaration is binding only on the parties to the suit and persons

claiming through them, respectively. This is for the reason that

under section 4 of the Specific Relief Act, specific relief is granted

only for the purpose of enforcing individual civil rights. The principle

contained in section 4 permeates the entire Act, and it would be

most incongruous to say that every other provision of the Specific

Relief Act refers to in personam actions, section 31 alone being out

of step, i.e., referring to in rem actions.

25. The reasoning in the aforesaid judgment would again expose the

incongruous result of section 31 of the Specific Relief Act being

held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the

Court under section 34 of the Specific Relief Act, 1963.

Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an

executant of the deed, being under section 31, would somehow

convert the suit into a suit being in rem. All these anomalies only

highlight the impossibility of holding that an action instituted under

section 31 of the Specific Relief Act, 1963 is an action in rem.

26. Given this finding of law, it is clear that the judgments of the District

Court and the High Court in this case need no interference. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5147 OF 2016

DECCAN PAPER MILLS CO. LTD. Vs  REGENCY MAHAVIR PROPERTIES 

R.F. Nariman, J.
Dated:August 19, 2020.

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What is distinction between power of civil court and arbitrator regarding grant of injunction?

 The dispute in between the parties arising out of an arbitration agreement would also come within the purview of the expression "decree' when it was adjudicated by a civil court. But, if it was adjudicated by the Arbitral Tribunal or the Arbitrator, it would be an award and not a decree as defined under Section 2(2) of the Code of Civil Procedure, though it may be a deemed decree for the purpose of execution. The difference is that the decree passed by a civil court would be a decree in persona or a decree in rem. A decree of declaratory relief granted would be a decree in rem (judgment in rem). The Arbitral Tribunal or the Arbitrator did not have any authority or jurisdiction to pass any award in rem (judgment in rem) like in the case of a decree in rem or judgment in rem of a civil court. The expression "award" means the amount of money that a court decides should be given to someone who has won a case; the decision to give money; to make an official decision to give something to someone as a payment, prize, etc. (See Oxford Advanced Learner's Dictionary, A.S. Hornby, 7th Edition.) The expression "award", n. is defined as a final judgment or decision, especially, one by an arbitrator or by a jury assessing damages. (See Black's Law Dictionary, Eighth Edition.) The expression should be understood in its plain legal meaning and the Arbitral Tribunal or the Arbitrator is expected to pass only an award as envisaged under the provisions of the Act. In other words, when there is a suit which was filed for an adjudication of a dispute other than payment of money or questions involving payment of money or settlement of account, there cannot be an application of the provisions contained in the Act, including Section 8 to refer the parties for arbitration or for appointment of an Arbitrator for deciding the issue in dispute. The matters which are amenable for an award alone can be referred under Section 8 of the Act. This makes the difference in the position of law applicable to the civil court and the Arbitral Tribunal or the Arbitrator, as envisaged under the Act. So, the matters which would require a decree in rem or judgment in rem like in the case of declaration of title of immovable property or a status of a person cannot be referred for arbitration as there is complete lack of jurisdiction either with the Tribunal or with the Arbitrator, as the case may be, under the Act.

17. A reference of a matter for arbitration which requires a judgment in persona or decree in persona further stood as again restricted by the application of Sections 38 and 39 of the Specific Relief Act and no decree of perpetual injunction or mandatory injunction (decree in persona) can be granted by the Arbitral Tribunal or Arbitrator under the Act.

18. Order XXXIX Rules 1 to 3 of the Code of Civil Procedure deals with exercise of power to grant or refuse interim order of either mandatory or prohibitory injunction. The very same power is also vested with the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act. But, that does not mean that the Arbitral Tribunal has jurisdiction to pass a decree of permanent prohibitory injunction or mandatory injunction or a decree of declaration of title of immovable property or status of a person. So, a suit either for declaration of title, declaration of right or interest over immovable property, declaration of status of a person, for a decree of permanent prohibitory injunction or a decree of mandatory injunction are not amenable to any of the provisions contained in the Arbitration and Conciliation Act, 1996, including Section 8 of the Act and hence revision fails.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 560 of 2013 (B) and I.A. No. 2410/2013 in C.R.P. No. 560/2013

Decided On: 05.07.2017

Shriram Transport Finance Co. Ltd. Vs. Naduvacheri Balakrishnan and Ors.

Hon'ble Judges/Coram:

P. Somarajan, J.

Citation: AIR 2017 Kerala 252

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To what extent disputes relating to intellectual property rights are arbitrable?

We now deal with the first aspect of the matter, i.e., as to whether IPR disputes are arbitrable. This takes us to the question as to whether it is in the realm of a right in rem and therefore, not arbitrable. In this context, a clear distinction has been made inter-alia in the line of authorities referred to supra between a right in rem and an action in personam. A judgment in personam refers to a judgment against a person as distinguishable from a judgment against a thing, right or status. A judgment in rem refers to a judgment against a thing, right or status or condition of property which operates directly on the property itself. To make this illustrative, it can be said that a patent license issue may be arbitrable, but validity of the underlying patent may not be arbitrable. This has been alluded to by the Hon'ble Supreme Court of India in Booz Allen supra and the learned Single Judge has also noted this aspect of the matter as is evident from a reading of the order which has been called in question before us.

5(q) We are aware that after Booz Allen and Ayyasamy supra, there is one more judgment of the Supreme Court, which dealt with the question as to whether there can be an arbitration clause in a trust deed and as to whether a dispute pertaining to a trust or as amongst trustees of a public trust is arbitrable and the same was answered in the negative. This judgment is Vimal Kishor Shah Vs. Jayesh Dinesh Shah [(2016) 8 SCC 788] decided on 17.8.2016.

5(r) While Booz Allen dealt with disputes relating to rights in rem qua arbitration / arbitrability, Ayyasamy dealt with fraud qua arbitration / arbitrability. The third judgment dealt with a dispute touching upon a trust qua arbitration /arbitrability. Though the last of the three judgments, i.e., Vimal Kishor Shah was not cited before us, the same stand noticed by us.

5(s) Pivotal submission of Lifestyle on this aspect of the matter is that the aforesaid judgment of the Hon'ble Supreme Court of India has not considered or excluded IPR disputes from the scope of arbitrability. For absolute clarity on this aspect of the matter, learned counsel for Lifestyle referred to paragraph 14 of Ayyasamy case and said that the list of disputes which may not be arbitrable as adumbrated therein is not the ratio or conclusion of the Hon'ble Supreme Court of India, but a mere extract from a book titled 'The Law and Practice of Arbitration and Conciliation'. A perusal of paragraph 14 affirms this position and very fairly, learned Senior Counsel for QDS does not dispute this.

5(t) We also notice that the learned Single Judge has dealt with the rival submissions on this aspect of the matter and summarized the findings returned by the Court. Learned Single Judge has held that there is no quarrel with the proposition that the grant of registration of a copyright or design under the relevant statutes can be achieved through / only by statutory authorities constituted under the respective statutes. Learned Single Judge has gone on to hold in the present case that both parties are in reality claiming a better right of usage vis-a-vis the other and that this would clearly bring the facts of the present case within the realm of a right in personam rather than a right in rem. On this aspect of the matter, we have no difficulty in sustaining the finding returned and opinion of the learned Single Judge. At the risk of repetition, while a patent right may be arbitrable, the very validity of the underlying patent is not arbitrable. This has been articulated in Mustill and Boyd in their '2001 Companion Volume to the 2nd Edn. of Commercial Arbitration' . This has also been extracted by the Hon'ble Supreme Court of India in Booz Allen's case and the learned Single Judge has noticed this. Therefore, to this extent, there is no difficulty in agreeing with the learned Single Judge and holding that the disputes in the instant case as between Lifestyle and QDS are arbitrable.
Madras High Court

Lifestyle Equities Cv vs Qdseatoman Designs Pvt. Ltd on 13 October, 2017

CORAM : Ms.INDIRA BANERJEE, CHIEF JUSTICE

MR.JUSTICE M.SUNDAR

O.S.A.Nos.216 and 249 of 2017
and
C.M.P.No.14932 of 2017
O.S.A.No.216 of 2017 :

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