SUBRAMANIAN Vs. NAGARAMMA

JUDGEMENT

(1.) This is an appeal by the 3rd defendant from the decree in O.S. No. 45 of 1113 of the Trivandrum District Court. In view of the order that we propose to make, it is unnecessary to state the facts in detail. The 3rd defendant, subscriber in a chitty of which the 2nd defendant was foreman sued the latter in O.S. No. 81 of 1100 for realisation of chitty money due for him, obtained a decree and in execution, purchased a chitty hypothecation bond executed by the deceased father of the 1st defendant in favour of the 2nd defendant. He sued on the bond in O.S. No. 17 of 1101 and in execution of the decree obtained by him, purchased the plaint schedule properties. The plaintiff was a party to the latter suit. One of the defendants in the suit appealed to the High Court in A.S. No. 406 of 1105. The plaintiff payed for a declaration that these decrees were obtained fraudulently and collusively, and would not bind her or affect the transfer of the hypothecation bond to her by the 2nd defendant, and for other reliefs. The 4th defendant had instituted an earlier suit as O.S. No. 43 of 1107 for more or less the same relief. He claimed to have attached this bond for amount due to him and he also sought for the same declaration.

(2.) Both the suits were decided by the court below on the 16th of August 1948. O.S. No. 45 of 1113 was allowed and O.S. No. 43 of 1107 was dismissed on the ground that the attachment was inoperative in as much as the 2nd defendant had parted with his interests in the bond by assignment to the plaintiff n O.S. No. 45 of 1113 who was the 7th defendant in O.S. No. 43 of 1107. The judgment in O.S. 43 of 1107 was directed to be appended to the judgment in this case.

(3.) On behalf of the appellant it was contended that the court below did not come to a conclusion on the evidence adduced in the case but that the case was decided on the strength of the finding in O.S. No. 43 of 1107. It was urged that the procedure adopted was wrong as there was neither an order consolidating the two suits nor agreement of parties that the evidence in O.S. No. 43 of 1107 could be used as evidence in this case. On 21-4-1114 the 4th defendant in this case (the plaintiff in O.S. No. 43 of 1107) filed C.M.P. 2186 to transfer O.S. No. 43 of 1107 to the court trying this case or to send this case to the court trying O.S. 43 of 1107. He stated in that petition that he was willing to treat the evidence in O.S. No. 43 of 1007 as evidence in this case. This petition was opposed by the 3rd defendant who categorically said that he was not willing to treat the evidence in that case as evidence in this case. C.M.P. 2186 was not pressed and was dismissed on 21-11-1114. The 4th defendant again filed a petition on 22-2-1117 (CMP 495) under S.9 and 115 of the Travancore Code of Civil Procedure, either to stay the trial of this suit or to adjourn the same 'till receipt of the records in O.S. No. 43 of 1107 from the High Court, so that the two suits be posted for joint trial." An order was passed on this petition on 7-4-1117 as follows: "Heard the advocates. The plaintiff's advocate in O.S. No. 45 of 1113 has no objection to the suit being jointly tried with O.S. No. 43 of 1107. Both the suits therefore will be tried together". On the next posting date viz., 8-5-1117, the 3rd defendant filed C.M.P. 1314 for setting aside the order dated 7-4-1117, as he was not heard in the matter. The plaintiff's counsel wrote on the petition, "I agree to the cases being posted on the same day and I am not pressing for joint trial or stay of O.S. No. 45/13." This was agreed to in writing by the 3rd defendant's counsel and an order was passed on 27-4-1118 in these terms:- "Post this suit along with O.S. No. 43 of 1107. No joint trial." Thereafter the trial of the two suits proceeded separately. The next move was by the 3rd defendant who applied on 22-7-1118 to transfer the case to the "3rd court" so that the prior order dated 27-4-1118 may be implemented. This was allowed. On 26-2-1119 plaintiff's counsel moved another petition (CMP 324) for "joint trial" of the two suits. In the affidavit supporting this application, it was stated that evidence should be recorded in one case. Notice was ordered on the same day, but the plaintiff did not care to comply with the order, with the result that the petition still remains undisposed of. The facts stated above will show that there was no order for consolidation of the two suits. All that was allowed was that the two suits should be posted on the same date. The statement in the judgment of the court below that "on the motion of the parties, this suit was ordered to be tried along with O.S. No. 43 of 1107" is without any foundation. Sri. N. Varadaraja Iyengar sought to support the decree on the ground that there was an order dated 7.4.1117 for joint trial and that this amounts to consolidation. In view of the prior orders referred to above, this was a wrong assumption of fact. It was then contended that the finding in O.S. No. 43 of 1107 that the decrees obtained by the 3rd defendant were fraudulent and collusive had the effect of res judicata. A number of decisions were cited to substantiate this point. There was a conflict of decisions as to whether if two suits involving common issues are disposed of in one judgment and an appeal is filed against the decree in one and not in the other, the matter decided in the latter suit becomes res judicata so that it cannot be reopened in the appeal. The Supreme Court was inclined to the view that the matter would not be res judicata. Vide Narahari v. Shanker 1950 (1) SCR 754 . This lends support to the view taken in Man Mohan v. Sahib Chandra ( 34 CWN 839 ) Shanker v. Bhagwat Sahai 1945 (20) Lucknow 339 FB, Manohar Vinayak v. Laxman ( 1947 Nag. 691 ) and several other decisions of other High Courts in India, which proceed on the basis that a decision given simultaneously cannot be a decision in a former suit. We follow the above view and hold that the findings in O.S. No. 43 of 11007 have not got the force of res judicata. It follows that the Trial Court was wrong in basing its decision of this case on the findings and evidence in O.S. No. 43 of 1107 and that the decree has to be set aside. Though we are reluctant to remand this old suit, we are constrained to do so in the circumstances, especially as it would be unjust to compel the plaintiff respondent to support the decree on the evidence recorded in this case.