SUPREME COURT REPORTS [ 1950]

\950 of authority is against the proposition that a widow as an unsecured creditor has any priority over the

K•P 0 " Chand other unsecured creditors of her husband. In our v.

K".d"' u""'"' opinion, the above mentioned two Allahabad decisions

B•um .t Oth"' do not lay down the law correctly on this point and the rule has been correctly laid down in Ameer

Kha.l•lus.oman "· Ammal v. Sankaranarayanan Chetty ( 1).

There is nothing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors.

For the reasons given above we hold that the objection raised by the widow had no substance in it and the executing court should have directed the property to be sold and the sale proceeds distributed rateably amongst the decreeholders and the widow.

In the result we allow this appeal, set aside the judgments of the two courts below and direct the executing court to proceed with the execution in accordance with the observations made herein.

In the circumstances we will make no order as to costs of these proceedings.

Appeal allowed.

1 9~0 f!N THE SUPREME COURT OF INDIA (HYDERABAD).]

Oct. JR.

NARHARI AND OTHERS

SHANKAR AND OTHERS.

[MEHR CHAND MAHAJAN, R. S. NAIK and

KHALILUZZAMAN JJ.J

Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal disposed of by same judgment-Separate decrees drawn "p-Appeal from, orie decree only-Maintainability-Res judicata-Limitation Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of decisions .

..4. instituted a. suit for possession of two-thirrls share in an estate against B and 0 who cloimed a one-third share each in it.

The suit was decreed by the trial court. B ant! 0 preferred (I) I.L.R. 25 Mad. 658.

• "

separate appeals.

These appeals were heard togethe.r and 1900 disposed of by the same judgment but sepa.rate decrees were prepared; A preferred an appeal from one of these decrees in Narhari a.nd time paying the full court fee anl later on, after the period of Othm limitation had expired, preferred an appeal from the other decree v. also. paying a court fee of Re. 1 only.

The High Conrt held that Shankar and A shoula have filed Repante appeals within the period of limita- Others. 1.i on and that, inasn_1uch as one of the appeals was time-barred,

che first appeal was barred by res judicata.

Held, that, as there was only one suit and the appeals hon been disposed of by the same judgment, it was not necessary to file two separate appeals and the fact that one of the appeals waH time-barred did not affect the maintainability of the other appeal and the question of res judica.ta did not a.t all arise in the case.

Held further, that in the circumstances the High Court,, .. , wrong in not giving to the appellant the benefit of s. 5 of the Limitation Act as there was a conflict of rulings on the subject.

Mst. Lachmi v. Mst. Bhuli (A.I.R. 1927 Lob. 289) applied- Appa v. Kach"i B<ryyan Kutty (A.J.R. 1932 lliad. 689) referred to.

APPEAL from a judgment of the High Court of Hyderabad under article 374 (4) of Constitution: Appeals Nos. 22 and 23 of 1950.

Ghulam Ahmad Khan, for the appellants.

The respondents were not represented.

1950. October 13.

The judgment of the Court was delivered by

NAIK J.-The suit out of which these appeals arise Na.; k J. was one for possession of two-thirds of the land covered by survey No. 214 and formesne profits. The plaintiffs claim possession on the ground that survey No. 214 was an inam land and according to the family custom, belonged to them exclusively as members of the senior line as against the defendants who were of the junior lines. There are two sets of defendants: Nos. I to 4 belong to one branch of the family and Nos. 5 to 8 to another.

Each set claim that they are in possession of orie-third of the land and maintain that they are entitled to it as their share of the family property. They deny the custom of exclusive possession by the senior branch, alleged by the plaintiffs. The trial court decreed the suit. From this decree, two separate appeals were taken by the two sets of the defendants to the Sadar -

&.\\a\at, G\l\barga, each daimin~ one-third portion of

Narhari tuid

Others

S h€lnkar a11d

OthtffS

Naik J.

the land and each paid the court fee to the extent of their share. The first appellate court, i.e., the Sadar Adalat, allowed both the appeals and dismissed the plaintiffs' suit by one judgment dated 30th Bahman 1338 F. and ordered a copy of the judgment to be placed on the file of the other connected appeal. On the basis of this judgment, two decrees were prepared by the first appellate court. The plaintiffs preferred two appeals to the High Court. The first was filed on 23rd Aban 1345 F. and with it was attached the decree passed in the appeal of defendants Nos. 1 to 4. Later, on 17th Azur 1346 F. another appeal was filed and with it the decree passed in the appeal of defendants Nos. 5 to 8 was attached.

This latter appeal was twenty-nine days beyond the period of limitation for appeals. It was filed on one-rupee stamp paper and a note was made therein that the full court fee had been paid in the appeal filed earlier, which has been registered as Appeal No. 331 of 1346 F. At the hearing of the appeals, a preliminary objection was raised by the defendants that as the other appeal. i.e., No. 332 of 1346 F. was filed beyond the period of limitation, it cannot be maintained and that when the other appeal is thus dismis, sed, the principle of res judicata would apply to the first appeal, i.e., No. 331 of 1346 and it should also fail. The High Court held that the plaintiffs should have filed two separate appeals within the period of limitation and as the other appeal was admittedly time-barred, the first appeal also failed by the application of the principle of res judicata. The High Court dismissed both the appeals. Against this judgment of the High Court two appeals were preferred to the Judicial Committee of the State and they are now before us under article 374(4) of the Constitution.

The High Court in its judgment relied on the decision given in jethmal v. Ranglal(1). That was a case of a money suit where the plaintiff's claim was partially decreed and from this judgment both the parties had appealed, the plaintiff to the extent of the suit dismissed and the defendant to the extent of the

ll} ~~. D. L. R. 322.

suit decreed.

The first appellate court dismissed the plaintiff's suit in toto, thus allowing the defendant's appeal and dismissing the plaintiff's appeal, and two separate decrees were made. The plaintiff appealed from one decree only, which was passed against him and it was held that the principle of res judicata applied.

Notwithstanding, this ruling of the Judicial Committee of the State, the High Court, in several cases, i.e., Nandlal v. Mohiuddin Ali Khan('), Nizamuddin

v. Chatur Bhuj('), Gayajee Pant v. Habibuddin('), and Jagannath v. Sonajee(') has held that when the suit is one and two appeals arise out of the same suit, it is not necessary to file two separate appeals.

In the judgment of the High Court, though reference is given to some of these decisions, it is merely mentioned that the appellant relies on these decisions.

The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in ]ethmal v. Ranglal(') they need not comment on these decisions at all.

There is also a later decision of the Judicial Committee of the State in Bansilal v.

Mohanlal('), where the well known and exhaustive authority of the Lahore High Court in Mst. Lachmi v.

M st. Bhuli (') was followed. In the Lahore case, there were two cross suits about the same subject-matter, filed simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment, in spite of there being two appeals by the two sets of defendants.

The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court-fee for the whole suit. 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.

(1) 22 D.L.R, 400.

(31 28 D.L.R. 1094.

15) 17 D.L.R. S22.

(2) 23 D.L.R. 457.

14) 29 D.L R 108.

(61 33 D.L.R. 601.

(7) A.I.R, 1927 L•h. '89, 97

Narhari and

Others

Shankar and

Othrs.

NaikJ.

Narhari and

Of hers v.

Shankar and

Oth!ra.

Nafk J.

As has been observed by Tek Chand J. in his learned judgment in Mst. Lachmi v. Mst. Bhuli(') 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 but 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 of section 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.

The learned counsel for the appellants cited in support of his arguments the decision given in Appa v.

Kachai Bayyan Kutti(2), which is on all fours with the present case.

We are, therefore, of the opinion that these appeals should be allowed and the case remanded to the High Court for decision on the merits of the case.

Costs of these appeals will abide the result of the case.

Appeals allowed.

(ll A.I.I\. 19'7 Loh. 289. (21 A.l.R. l 932 (\fad. 689.