M C A R C S CHOCKALINGA THEVAR FIRM REPRESENTED BY ONE OF THE PARTNERS, M C CHOCKALINGA THEVAR Vs. KASANKARAPPA NAICKER

JUDGEMENT

(1.) The appellants are a firm of merchants dealing in raw cotton at Tirumangalam and Virudhunagar. They filed the suit out of which this appeal arises in the Court of the Subordinate Judge of Madura to recover from the respondents the sum of Rs. 24,264-12-10, which they claimed to be the balance of the price of goods sold and delivered to the respondents. Their case was that the respondents had in partnership entered into the contracts with the appellants. The respondents denied that they were partners and averred that the appellants and their other creditors had agreed to a composition of twelve annas in the rupee, which precluded the appellants from recovering more. The Subordinate Judge held that the respondents had entered into the contract in partnership, but he found for them on the question relating to the composition. Consequently he granted the appellants a decree for Rs. 16,248-14-8, being three-fourths of Rs. 21,685-3-7 which he held to be the balance of the purchase consideration. The appellants have appealed against the finding that there was a completed agreement for a composition. The respondents have filed a memorandum of cross-objections with regard to the finding of the Subordinate Judge that they entered into the contracts in partnership.

(2.) When the appeal was called learned Counsel for the respondents reported that they were no longer instructed. The reason for the withdrawal of their instructions is not far to seek. The question whether there was a completed agreement for a composition was raised and decided in another suit in the same Court (O.S. No. 23 of 1929). That suit was filed by the second respondent in the present appeal. It was tried by a different Subordinate Judge, who held that the proposed agreement for a composition was not completed and this decision has not been challenged on appeal. The parties to the present appeal were all parties to O.S. No. 23 of 1929. In these circumstances the learned Advocate-General for the appellants contends that the decision in O.S. No. 23 of 1929 brings into operation in this appeal the doctrine of res judicata. We consider that the contention is well founded.

(3.) In Balkishan V/s. Kishan Lal (1888) I.L.R. 11 All. 148 (F.B.) a Pull Bench of the Allahabad High Court held that the rule of res judicata applies equally to appeals and miscellaneous proceedings as it does to original suits and that where after the commencement of the trial of an issue a final judgment on the same issue is pronounced by a competent Court of jurisdiction in another case it operates as res judicata. There are two single Judge decisions of this Court to the same effect, Rangachariar V/s. Rangaswami Aiyangar (1935) 70 M.L.J. 223: I.L.R. 59 Mad. 777 and Krishnan Nair V/s. Kambi (1937) M.W.N. 299. In the former of these two cases Varadachariar, J. held that there was nothing in the observations of the Full Bench in Panchanada Velan V/s. Vaithinatha Sastrial (1905) 16 M.L.J. 63 : I.L.R. 29 Mad. 333 (F.B.) to exclude from the operation of the rule of res judicata judgments coming into existence during the pendency of proceedings by way of appeal or revision if such judgments are allowed to become final. In the second of the two cases Venkataramana Rao, J., quoted with approval Balkishan V/s. Kishan Lal (1888) I.L.R. 11 All. 148 (F.B.) and Rangachariar V/s. Rangaswami Aiyangar (1935) 70 M.L.J. 223: I.L.R. 59 Mad. 777.