KUMARAN NARAYANAN Vs. NARAYANA KAIMAL

JUDGEMENT

(1.) The first defendant in a suit for eviction is the appellant and the plaintiff the respondent. The suit was decreed against the appellant for recovery of possession; but, a consequential decree was passed in his favour for value of improvements effected by him. It was also provided in the decree that the respondent would be entitled to mesne profits from the date of deposit of the value of improvements. The respondent filed A. S. No. 139 of 1956 in the District Court of Mavelikkara; and that appeal was transferred to the Subordinate Judge's Court at Thiruvalla. In that appeal the respondent questioned the correctness of the value of improvements, costs, mesne profits, etc. The appellant filed another appeal in forma pauperis against the same decree, to be more precise, against the decree for eviction, in the District Court of Mavelikkara. That appeal, though presented in 1956, appears to have been numbered only in 1958 as A. S. No. 186 of 1958; and it also appears that the appeal was filed only on 27th July 1958. In the meantime, A. S. No. 139 of 1956 transferred to the Sub Court at Thiruvalla was heard and disposed of on 17th March 1958. Thereafter on 1st August 1961, A. S. No. 186 of 1958 came before the District Judge, Mavelikkara; and the District Judge dismissed the appeal on the ground that the question involved in the appeal was concluded by reason of the disposal of A. S. No. 139 of 1956. The District Judge did not consider the merits of A. S. No. 186 of 1958. The second appeal is directed against that decision of the District Judge.

(2.) Mr. George Vadakkel has argued that the decision in A. S. No. 139 of 1956 could not have been res judicata against A. S. No. 186 of 1958. He has drawn any attention to the decision of the Supreme Court in Narahari v. Sanker ( AIR 1953 SC 419 ), where the Supreme Court has said that the question of res judicata arises only if there are two suits; and that when there is only one suit, the question of res judicata does not arise at all. S.11 of the Code of Civil Procedure also indicates the same, because it only provides that 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. Therefore, it is evident that the decision in A. S. No. 139 of 1956 could not have been res judicata against A. S. No. 186 of 1958, both the appeals having arisen from the same suit.

(3.) Mr. Vadakkel then places before me two or three decisions of the Madras High Court. The first is S. Venkatarama Aiyar v. Unnamalai Ammal ( AIR 1949 Mad. 377 ) by Mack J. The next decision is Kota Kanakayya v. Kamapalli Lakshmayya ( AIR 1951 Mad. 218 ) by Viswanatha Sastri J. In the former Mack J. has held that when an appeal was pending against a remand order, if the lower court, as there was no stay by the appellate court, finally disposed of the matter, the appeal became incompetent. Viswanatha Sastri J., considering elaborately all aspects of the question and adverting to the earlier decisions of the Madras High Court, has held in the latter that the view of Mack J. was not in conformity with the earlier decisions of the Madras High Court. I also find that the decision of Mack J. was taken up in appeal before a Division Bench under the Letters Patent; and the Division Bench, consisting of Satyanarayana Rao and Raghava Rao JJ., has in a short judgment reversed the decision of Mack J., and has also held that the decision of Viswanatha Sastri J. is the correct view on the question: vide 5. Venkatarama Ayyar v. Unnamalai Ammal ( AIR 1951 Mad. 883 (1) ). Viswanatha Sastri J. has said that there is no provision in the Code of Civil Procedure that takes away the right of a party to appeal from a preliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against the preliminary decree or the order of remand is presented; nor is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal. The learned Judge has noticed in Para.6 of the judgment the doctrine that subordinate and dependent decrees come to nothing when the decree on which they are dependent is set aside should not be extended so as to operate beyond the different stages of the same suit or proceeding; and has observed that the final decree passed in pursuance of a preliminary decree or order of remand in the same suit is subordinate to and dependent on the preliminary decree or the order of remand as the case may be.