RENGANAYAGI Vs. K R RENGANATHAN MUDALIAR

JUDGEMENT

(1.) THE learned Single Judge did not go into the merits and dismissed the appeal only on the ground of res judicata. Against that, present appeal has been filed.

(2.) A very elegant point is raised in this appeal which involves the construction of Order 41 Rule 33 as it stands amended now. There is no dispute that there were two suits. One was filed by the appellant herein and the other by the respondent. The appellant's suit for declaration that the aforesaid sale deed is sham and nominal. The Trial Court decreed the respondents' suit and dismissed the appellant's suit. An appeal was filed only against the decree granted in the respondents' suit. Against the dismissal of the appellant's suit no appeal was filed and therefore, the learned Single Judge held that the decree passed in O.S.No.20 of 1986 would operate as resjudicata and therefore, there cannot be any appeal against the decree in O.S.No.27 of 1985.

(3.) THE learned counsel for the appellant submitted that since both the suits were disposed of by a common judgment, there is no former judgment for Section 11 to come into play. Further Order 41 Rule 33 is very clear that all the questions raised in the appeal may be considered by the Appellate Court, even though an appeal has not been filed, there have been several decrees in cross suits or where two or more decrees passed in one suit, then the appellate jurisdiction may be exercised in all or any of the decrees so that an appeal may not be filed between that decrees. THE learned counsel submitted that all the decisions which held that the non-filing of the appeal would operate res judicata either arose out of matters which were before 1976 amendment of CPC or this aspect has not been considered. THE learned counsel appearing for the respondent submitted that case laws decided hold that the decision is res judicata. In ILR 1965 Madras 1(Subbiah Udayar Vs. Karuppiah Odayar alias Pichai Odayar) even before this amendment was enacted, the Division Bench of this Court hearing the appeal against the order of the Estates Abolition Tribunal had to consider whether the decision passed in O.P.No.331 of 1961 under Section 51(1) of the Madras Act XXVI of 1948 having been allowed to become final would operate as res judicata in O.P.No.332 of 1961 as both of them had been disposed of by a common order. THE Division Bench of this Court presided over by Ramachandra Iyer, C.J., as he then was, relied on 1962 (3) SCR 759(Narayan Singh Vs. Kamdeo Prasad Singh) where it was observed thus: "THE question of res judicata raises 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." "When there is only one lis the question of res judicata does not arise at all. Both the decrees in the instant case are based on the same judgment and the matter decided concerns the entire claim. THE subject matter in dispute between the parties in substance can be regarded as forming one lis only. By virtue of the peculiar procedure obtaining in regard to applications filed under section 42 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), it has been the practice for such claimant to compensation money to file his own application. In such a case, the applications are consolidated for the purpose of hearing and a common judgment given. Both the applications in the instant case must be regarded, therefore, as comprising a single controversy and that they should be regarded as constituting a single proceedings as the subject-matter is the same. THEre is no question of the application of the principle of res judicata to such a case."