RAM NARAIN Vs. NIHAL SINGH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for damages for Rs. 525. The Court of first instance decreed the claim for Rs. 349-11-6 on account of a period of five years. The defendants appealed to the Judge and their appeal was numbered as Civil Appeal No. 482 of 1921. In this they claimed that the whole suit ought to have been dismissed. The plaintiffs also appealed and their appeal was numbered as Civil Appeal No. 484 of 1921. In this they claimed damages for one year extra which had been disallowed by the Court of first instance. The learned Judge heard the two appeals together and disposed of them by practically one judgment. The result was that he held that the plaintiffs were entitled to claim damages for six years no part of which was barred by time, but he thought that the rate of damages allowed by the first Court was excessive. The net result of his finding was that the decree which had been passed by the first Court in favour of the plaintiffs was reduced in amount. There were two separate decrees prepared in two separate appeals. The defendants have come up to this Court and have filed an appeal only from the decree in appeal filed by them in which their objection that the whole suit ought to have been dismissed was not allowed. They have preferred no appeal from the decree in the plaintiffs appeal.

(2.) There is a preliminary objection on behalf of the respondents that the present appeal is barred by the principle of res judicata. The law on this question is laid down in the Full Bench case of Ghansham Singh V/s. Bhola Singh A.I.R. 1923 All. 490 At page 469 it was remarked "where there are two decrees arising out of two appeals to a subordinate Appellate Court, and only one of such decrees is brought up in second appeal and there is nothing prejudicial to the appellant in the decree from which no appeal has been brought which is not raised and cannot be set right if the appeal which he has brought succeeds, the right of appeal is not barred either by the rule of res judicata or at all by reason of his failure to appeal from the decree which does not prejudice him".

(3.) I have already stated that the result of the findings of the learned Judge was that the amount decreed to the plaintiffs by the first Court was actually reduced. In substance therefore the plaintiffs appeal in which they had claimed a larger sum was really not allowed at all, nor was the question of their right to get any amount; decided in it which was not raised in the other appeal. The present appeal is preferred from the main appeal in which the question as to whether the entire claim ought or ought not to have been dismissed was raised. In view of the pronouncement in the Full Bench case I am bound to hold that the hearing of this appeal is not barred by the fact that no formal appeal has been preferred from the decree in the other appeal which really was in favour of the defendants.