GHANSHAM SINGH Vs. BHOLA SINGH

JUDGEMENT

(1.) This appeal was referred to a Bench of five Judges to decide whether the appellant's right of appeal was barred by what has been called the principle of res judicata," in accordance with a preliminary objection taken by the respondent, or, in other words, whether the ruling in Zaharia V/s. Debia (1910) I.L.R. 33 All. 51 applied to it, or whether, as the appellant contended, it was governed by the riding in Damodar Das V/s. Shea Ram Das (1907) I.L.R. 29 All. 730 and in effect, therefore, whether the latter decision was correctly reported as having been overruled by the former.

(2.) We are of opinion that there is no such bar and that the preliminary objection fails. The facts are simple. The plaintiff sues upon a mortgage executed by the defendant in his favour, on the 28 of May, 1914, and claims re-payment of the principal amount secured, with interest thereon at the contract rate, or, in the alternative, sale of the mortgaged property. The Munsif decreed the claim, but deprived the plaintiff of costs upon the ground that the rate of interest was excessive and that the sum had swelled to an inordinate amount. From this preliminary decree both parties appealed to the Subordinate Judge, who varied the decree by reducing the plaintiff's claim to one for simple interest only, resulting in the sum of Rs. 488 and further interest pendente lite, and future interest up to the date of realization, and by awarding the plaintiff proportionate costs upon the amount due. He also directed that each party should pay its own costs of the appeal. Two separate decrees were drawn up in the lower appellate court. This fact has given rise to the present difficulty. In spite of the absence from the Code of any provision enabling two cross-appeals from the same decree to he consolidated, the appellate court in such a case has inherent jurisdiction, in disposing of the two appeals, as the court in this case did, by one judgment, so to mould its decree as to merge the result of the two appeals into one decree, representing the final adjustment of the rights of the parties on all the points raised, in a manner similar to the procedure adopted where there is one appeal, and cross-objections are made on behalf of the respondents. We have, however, to deal with a case in which two decrees were in fact passed, the terms of which were identical, except as regards the contents of the memorandum of costs endorsed on each, respectively. The difficulty of carrying out the procedure adopted by the lower appellate court in this case, and the practical objection to it, are sufficiently shown by a perusal of the two decrees. Though each is, ex hypothesi, intended to be independent of the other, and to be confined only to the separate appeal to which ft relates, each in fact is framed in terms which refer to and operate upon both appeals, thereby defeating the object which the practice of drawing up two decrees must be presumed to be intended to achieve. So far as concerns the decree drawn up in the plaintiff's appeal to the lower appellate court, both parties were satisfied. The plaintiff achieved his object by obtaining an order in his favour awarding him proportionate costs, and the defendant did not appeal against the. The present appeal is brought by the plaintiff against the decree drawn up in the defendant's appeal to the lower appellate court which reduced the amount of his claim as awarded in his favour by the trial court.

(3.) It is the absence of any appeal by the plaintiff from the decree in his own favour in the lower appellate court, which except in so far as it repeats the reduced amount of the claim, contains nothing to his prejudice, that is said to create a bar to his present appeal. In other words, the very decree against which he appeals is sought to be used against him as a bar to his right of appeal against it. So stated, the objection is contrary to justice and common sense, and must, therefore, be fallacious.