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AIR 2005 SUPREME COURT 626 ::2005 AIR SCW 270
Supreme Court Of India
Hon'ble Judge(s): N. Santosh Hegde, B. P. Singh, Satya Brata Sinha , JJ

(A) Civil P.C. (5 of 1908) , O.9 R.13, O.43 R.1, S.96(2), S.11— Ex parte decree - Remedies available against - Defendant can file appeal or can file application under O. 9, R. 13 to set aside ex parte decree - Once application under O. 9, R. 13 is dismissed - He cannot by filing first appeal dispute correctness of order posting suit for ex parte hearing or show cause for his non-appearance. AIR 2004 NOC 73 : 2003 (3) MPLJ 141, Reversed.(Paras384243) (Para 38 42 43) (B) Civil P.C. (5 of 1908) , S.11— Res judicata - How distinct from issue estoppel - Res judicata creates a different kind of estoppel namely, Estoppel by Accord. Evidence Act (1 of 1872) , S.115— There is a distinction between 'issue estoppel' and 'res judicata'. Res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estoppel by Accord.(Para 30) .....

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