ANGAPPA GOUNDER Vs. RAJAVELU GOUNDER

JUDGEMENT

(1.) This second appeal raises an interesting question of law about the principle of res judicata.

(2.) The only question that falls for determination is that when two suits involving substantially the same issue are disposed of under a common judgment, non- filing of an appeal against the judgment and decree in one suit, will operate as res judicata when the decision in the other suit alone is challenged in the appeal.

(3.) Though in my opinion, the Supreme Court has laid down that the principle of res judicata will be attracted 'in such cases, vide Koshal Pal v. Mohanlal, followed by Balasubrahmanyam I in Khaja Mohideen v. Muhaideen Batcha, (1979) 92 Mad, LW 28: (AIRA079 19M 155) and Lanankutti v, Thomman, learned counsel for the respohdents sought to distinguish these rulings on the ground that the, abode principle wig not be applicable to cast where the two suits were disposed of under a common Judgment Incidentally, the learned ?,couosel claimed 8upport to his above contention from the 11DROWift observation of the Supreme Court in Narhari v. Shanker, "'It is now well ' settled that where there has been one trial, one finding, and one decision, there need not be two appeals, even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lahore 289 (FB) (H) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree, brut it can only be created by the judgment The question of res: judicata arises only When there are two suits. Even when there are two suits. it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the-matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit 6f Sec. 5 of the Limitation Act, because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India" (underlining by me). and the decision of the Andhra Pradesh High Court in K. A. Natesa Chettiar Y. Nune Krishnaiah Chetti, Hence is it I am persuaded to Tender a detailed judgment.