TMI Blog2012 (10) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant-petitioner filed Title Suit No. 2800 of 2010, inter alia, seeking for a decree for declaration that a compromise decree dated January 10, 1992 passed in Title Suit No. 31 of 1990 was bad being an outcome of fraud. 2. From the averments made in the plaint, it appears that the respondent/opposite party No. 1 instituted Title Suit No. 116 of 1987 in the capacity of sole shebait and next friend of the deities, namely, Shree Iswar Narayan Jew Thakur and Shree Iswar Shib Thakur against Deb Kumar Mukherjee and Bimal Kumar Chatterjee seeking declaration that the disputed property was a rebutter and the aforesaid persons could not treat the said property as secular one. Subsequently, on the prayer of the plaintiff made in the said suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of res judicata. 8. Before proceeding to deal the above aspect, it would be profitable to quote the provisions of Section 11 of the Code, which reads thus: Section 11. Res Judicata: No Court shall try any suit or issue in which the matter directly and, substantially, in issue has been directly and, substantially, in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been, subsequently, raised, and has been heard and finally decided by such Court. 9. The principle of res judicata, as enshrined in the above provision, is based on the principle of equity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants in order to find out as to whether the suit is barred by law. Therefore, the plaint cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order 7, rule 11 (d) of the Code. 14. The learned advocate appearing for the respondent candidly submits that the plea of suit being not maintainable in view of the embargo created under Order 23, rule 3A of the Code, was not taken by the defendant in his application under Order 7, rule 11 of the Code. However, he submits that such point is a pure question of law and, therefore, the respondent no. 1 should be permitted to raise such issue. 15. The learned advocate appearing for the respondent no. 1, has invited ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il versus Keshav and another reported in (2012) 5 SCC 525, in contending that this suit is barred under the provisions of Order 23, rule 3A of the Code. 19. We have given our anxious consideration on the above noted decisions, but we fail to convince ourselves as to whether we should venture to decide such point in absence of any plea being taken by the respondent no. 1 in an application under Order 7, rule 11 of the Code. As indicated above, the solitary ground taken in the said application was the plea of res judicata and there was no whisper in the said application that the suit was barred under Order 23, rule 3A of the Code. 20. We feel that it will be improper to permit the appellant to raise the said new plea as such plea was ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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