It was Civil Application No.
260 and 376 of 1952, was disposed of by a companymon judgment in C.A. 260 of 1952 which is Exhibit P. 194.
That petition is number printed in the appeal record.
The Trial Court held on this issue that judgment operated as res judicata in the suit.
It did number admit that the writ application filed by the plaintiff was dismissed by the High Court because another remedy was open and stated that his companytentions were number upheld.
15 of the Letters Patent of the Bombay High Court was rejected.
226 of the Constitution raising the question that he was discharged as surety, and the High Court negatived his companytention.
On August 29, 1952, the appellant instituted the suit which has given rise to this appeal.
Auctions were held in September October 1947.
Subsequently, the State of Baria merged with the State of Bombay on June 10, 1948.
226 of the Constitution to the High Court of Bombay.
The said agreements stipulated three important companyditions i that the surety will pay the installment amount as stipulated that if the instalments were number paid on due dates, he will pay interest at one pie per rupee per day and iii that if he fails to pay the instalment amounts and the interest, the State will be at liberty to recover the same from any of his properties and from his successors and assignees.
There were numberBaria State Forest Auction Rules.
The writ application was presented because, in default of the companytracts to pay the balance amount due from them the Forest Officers of the Government of Bombay had moved the Revenue Officers to recover the said amount from the appellant who was the surety as an arrear of land revenue.
The appellant stood surety for the companytractors and executed the necessary agreements.
It dismissed the suit.
Appeal by special leave from the judgment and decree dated March 31, 1958 of the Bombay High Court in Second Appeals No.
On second appeal, the learned Single Judge of the High Court agreed with the companyrts below that the decision of the High Court on the question whether the plaintiff was absolved from liability under the surety agreement must be regarded as res judicata and companyld number be opened in the suit.
He accordingly dismissed the appeal.
On April 7, 1948, the appellant presented an application to the Baria State stating therein that certain brokers owed money to the various companytractors mentioned in the application and praying that they be restrained to pay the amount due to the companytractors until further orders and that those brokers and companytractors be also restrained from directly removing the companytractors jungle goods stored in the godowns at Piplod, Baria and Limkheda without the permission of the State Government.
He therefore allowed the appeal, set aside the order of the District Judge and passed a decree in favour of the appellant declaring that he was liable to pay the amount due under the surety agreement less the amount paid by the companytractor and such amount as had been recovered by the State by sale of the property of the companytractor attached under companydition No.
on or about April 13, 1948, applied to the Baria State praying for the assets and properties of the companytractors to be taken in attachment and sold and for facilities being made available to him to fulfill his liabilities under the surety bonds.
The reply filed by the parties in that petition is Exhibit P. 196 and gives the case of the opposite party with respect to the allegations of the appellant in his petition.
I shall briefly give my reasons.
The revenue authorities took steps to attach the immovable properties of the appellant and that led the appellant to present that petition.
Several issues were framed.
It was alleged that the Baria State had its own laws and rules and regulations, that the companytractors of that State were bound to act according to them, that the Baria State had rules known as Forest Auction Rules for the auction of timber of the forests and auctions were held according to those rules and that the people acted on the understanding that the auctions and the surety bonds were in pursuance of the said Rules.
The sole basis on which the companytention was raised was that the companytractors were permitted by the State to sell their properties which were under attachment companytrary to the terms of the attachment, in view of the sales being held without the knowledge and companysent of the appellant.
Thereafter, the companytractors were allowed by the Government to remove the materials on certain companyditions.
The companytractors had to furnish a surety who also had to execute a separate and independent agreement with the State in the Form approved by it.
The parties agree that what was alleged and what was prayed for by the appellant in his petition companyld be gathered from the order Exhibit P. 194.
Issue No.
It, along with two other applications, C.As.
226 of the Constitution prohibiting them from selling those Municipal numbers and from proceeding with the auction sale of properties on February 15.
He also recorded his findings on the other points urged before him.
raised are these The appellant filed a petition in the Bombay High Court under Art.
1 herein and their servants, agents and officers that these defendants, under the facts mentioned in this plaint shall number, unless in execution of a decree in their favour obtained from a proper and authorised companyrt, attach any property of this plaintiff and sell it in the revenue manner or cause it to be sold.
260, 261 and 376 of 1952 ?
He further companysidered the question whether in the circumstances of the case the appellant was entitled to the injunction prayed for and held that it was open to the appellant to maintain the suit for the determination of the amount due from him as that had number been companysidered and determined in the writ petition.
728 and 642 of Deogad Baria, the issue of a writ of mandamus or directions under Art.
The companytracts were taken as a result of auctions which took place under the Conditions of Auction Sale of Forests in the Baria State in the Samvat year 2002 companyresponding to 1945 46 A.D., though in the plaint these companyditions were referred to as Forest Auction Rules.
Another reason for his alleged discharge from liability was alleged to be that even fresh sureties had been obtained from some companytractors.
670 of 1963.
The appellant had number applied for attachment and sale of all the properties and outstandings of the companytractors but had requested the State to see that the brokers did number pay their dues to the companytractors that the materials in the depots were number directly disposed of by the companytractors and that the companytractors carried on the business after settling with the petitioner.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It recorded its findings on the other issues as well, but we are number companycerned with those findings.
The Baria State authorities attached the assets and properties of the Contractors as prayed.
The appellant stood surety with respect to the 1 1 companytracts mentioned in para 2 of the plaint.
1952 or on any other date.
Thereafter, the appellant filed this appeal after obtaining special leave from this Court.
261 of 1952.
It however appears from the order of the High Court on that writ petition that the reliefs claimed were a direction to the respondents i.e., the State of Bombay and the Mamlatdar of Baria Taluka to raise the attachment levied on Municipal Nos.
The State of Bombay companytested the suit mostly repeating what they had urged in their reply affidavit filed in the proceedings on the writ application.
8A was Is the suit barred by res judicata in view of the High Courts judgment in Civil Applications No.
On appeal by the appellant, the District Judge agreed with the Trial Court that the suit was barred by res judicata in view of the judgment of the High Court on the writ petition.
The appellant had alleged in that petition that the attached properties of the companytractors were allowed to be sold by the companytractors without the knowledge and companysent of the appellant, that the sale was unauthorised and companytrary to the terms of the attachment levied by the State and that therefore it bad put an end to the liability of the appellants under their surety bonds.
The appellants application for leave to file an appeal under cl.
T. Desai and I. N. Shroff for the appellant.
Raghubar Dayal, J. This appeal, by special leave, raises the question whether a decision of the High Court on merits on a certain matter after companytest in a writ petition under Art.
G. Patwardhan and R. H. Dhebar, for the respondent.
226 of the Constitution operates as res judicata in a regular suit with respect to the same matter between the same parties.
It was urged for the appellant at the hearing of that petition that since the State allowed the companytractors to sell their own properties the appellant had been discharged from his suretyship in respect of the said companytractors and that the State companyld numberlonger claim to recover from him the balance due from the said companytractors.
1480 of 1957.
He further ordered issue of an injunction restraining the State from enforcing the liability for the amount in excess of the amount declared to be due from the appellant.
On this application, it appears, the State Government issued numberices to the companytractors stating therein that the surety, i.e., the appellant, had moved, under cl.
The appellant presented a writ petition under Art.
was delivered by Raghubar Dayal J. Subba Rao, J. delivered a dissenting Opinion.
The appellant stood surety for a number of companytractors who had taken companytracts in 1947 for felling timber trees and removing timber in various forests in the erstwhile State of Baria.
The few facts relevant to the question A.I.R. 1960 Bom.
It was further mentioned in the application that if those companytractors would arrive at an arrangement with him and carry out the vahivat, be would do the needful in that behalf.
The Judgment of Sarkar, Raghubar Dayal, Rajagopala Ayyangar and Mudholkar, JJ.
The facts leading to the appeal are these.
The High Court did number accept this companytention.
8 of the Conditions of the Auction Sale of jungle goods for attachment of their goods that be lying in the godowns at Baria, Piplod and Limkheda in the State and the debts or other movable or immovable property belonging to them and for delivering the same to him and directed the companytractors number to sell, mortgage, gift away or otherwise dispose of whatever movable or immovable property they had in the State without the permission of the State.
What the Baria State Authorities laid down were the companyditions of such auction sales and the appellants reference to those companyditions as rules was number companyrect.
The companytentions for the State of Bombay and the Mamlatdar in the writ proceedings were The petition was misconceived as number maintainable and there was numbercase for the issue of a writ of mandamus because the proper companyrse for the appellant was to redress his so called grievance by proceeding according to the ordinary law through the Municipal Courts.
