JUDGMENT John Stanley, C.J.
1. The question for our determination in this appeal is one of the application of the rule of res judicata. The appeal has been laid before a Bench of three Judges owing to the recent decision in Damodar Dass v. Sheo Ram Dass 29 A. 730 : A.W.N. (1907) 245 : 4 A.L.J. 587, which is in conflict with the earlier decisions of this Court.
2. The appeal arises out of a suit for preemption. The defendants Deba, Musammat Kesar and Musammat Jawitri on 9th of August 1907 sold certain zamindari property in the village of Newari to Bhuri Singh and two others. Thereupon two rival suits for pre-emption were instituted in the Court of the Munsif of Ghaziabad, one by Manphul, which was No. 1404 of 1908, and the other by the appellant Zahariya; which was No. 1405 of 1908. By order of the Court, Zahariya was made a defendant in suit No. 1404 and Manphul was made a defendant in suit No. 1405 with the object of having their respective rights determined. For corvenience sake both suits were tried together without objection by the parties. Issues were knit and amongst others the following: "Has Zaharia, rival pre-emptor, a preferential right against the plaintiff (i.e., Manphul); and if not, have both rival pre-emptors equal rights." One judgment was delivered in the two suits, which was placed on the record of suit No. 1404; a copy being placed on the record of suit No. 1405. By this judgment the suit of Zaharia dismissed and the suit of Manphul was decreed. A decree in each suit was passed. Zaharia filed an appeal in suit No. 1405 but did not appeal against the decree passed in suit No. 1404. When his appeal came on for hearing the time for appeal against the decree in suit No. 1404 had expired and the preliminary objection was raised to the hearing of the appeal, namely, that it was barred by the decree passed in suit No. 1405. It will be observed that it was necessary for the determination of suit No. 1404, that the Court should find whether or not Zahariya had a preferential right, or any right, to pre-empt ns against Manphul. The lower appellate Court allowed the preliminary objection and dismissed the appeal. The learned District Judge in his judgment observes: ''It is obvious that even under the provisions of Rule 33, Order XLT. I could not set aside the decree in Manphul's favour to which Zahariya was a party. Thus if Zahariya's appeal were decreed there would be in existence two contradictory decrees. Manphul has, I have ascertained, already paid in the money and secured the right of pre-emption over the property, if Zahariya's appeal were decreed, to which of the two, Manphul or Zahariya, should a Court award the pro-perty?" Against this decree this second appeal has been preferred.
3. In the case of Chhajjii v. Shso Sahai 10 A. 123 which is a case on all fours with the present, the question before us was considered. In that ease two rival Suits for pre-emption were instituted in each of which each pre-emptor was made a defendant in the other suit. The suits were tried together upon the same evidence and were disposed of by a single judgment but by separate decrees. In one of the suits the pre-emptor obtained a decree in the terms of Section 214 of the former Code of Civil Procedure. In the other the pre-emptor obtained a decree subject to the condition that in the event of the first pre-emptorfailing to execute his decree, the second pre-emptor should be entitled to execute it. There was no appeal against0 the decree in the first suit. The second pre-emptor appealed from the decree in his own suit upon certain grounds. It was decided in that case by Straight and Brodhurst, J.J., that the appellant, if he wished to get rid of the decision regarding the first pre-emptor's preferential right, should have appealed against the first pre-emptor's decree, and that that decree having become final the question between the two pre-emptors could not be reopened on appeal from the second pre-emptor's decree. This decision was followed without, so far as I am aware, a note of dissent in a number of cases upto the time of the ruling in Damodar Das v. Sheo Ram Das 29 A. 730 : A.W.N. (1907) 245 : 4 A.L.J. 587.
4. In the case of Balkislian v. Kishan Lal 11 A. 148, the same question was considered by a Full Bench consisting of Edge, C.J., Straight and Mahmud, JJ. It was held that the rule of res judicata contained in Section 13 of the Code applies equally to appeals and miscellaneous proceedings as to original suits; that having regard to its main object so far as it relates to the re-trial of an issue, it refers not to the date of the commencement of the litigation but to the date when the Judge is called upon to decide the issue' and that where after the commencement of the trial of an issue a final judgment upon the same issue in another case is pronounced by a competent Court (the identity of parties and other conditions of Section 13 being fulfilled), such judgment operates as res judicata upon the decision, original or appellate, of the issue in the later litigation.
5. In Ram Lal v. Chhab Nath 12 A. 578 Sir John Edge, C.J., and Brodhurst, J., in a case in which the plaintiff and defendant in a suit each appealed separately, and the defendant's appeal first came on for hearing and an issue as to whether the plaintiff or the defendant had title to certain lands in dispute was. decided on the facts by the appellate Court adversely to the defendant, held that the plaintiff's appeal involving the same issue which came on for hearing before the same Court was barred by the principle of res judicata. The Subordinate Judge treat- ed the finding in the first appeal as operating as res judicata and the learned Judges in their judgment approve of his ruling saying that although Section 13 (of the former Code of Civil Procedure) would not apply still the principle of res judicata applied and that Section 13 of the Code is not exhaustive as was pointed out by their Lordships of the Privy Council in the case of Ram Kirpal v. Rup Kuari 11 I A 37 : 6 A 269.
6. The rule laid down in Chhaju v. Sheo Sahai 10 A. 123 was followed in Mangli v. Narain A.W.N. (1893)190. Kesho Tiwari v. Sarju Kunwar A.W.N. (1893) 190, Munna v. Nisar Ali S.A. No. 764 of 1891 (decided on the 9th of August 1893), Ajail Ali Khan v. Musammat Ashraf Jahan Beg am, S.A. No. 140 of 1899 decided on the 15th of February 1901; Musammat Aziman v. Abdullah, Second Appeal No. 208 of 1907, decided on the 3rd of January 1908; and Abdul Basit v. Ashfaq Husain A.W.N. (1908) 211 : 4 M.L.T. 172.
7. The only conflicting authority in our Court, so far as 1 am aware, is that of Damodar Das v. Sheo Ram Das 29 A. 730 : A.W.N. (1907) 245 : 4 A.L.J. 587.
8. In that case none of the authorities of this Court appear to have been cited and no reference whatever is made to any such, but reliance is placed upon, two decisions of the Calcutta and Madras High Courts respectively.
9. I shall now refer to these cases but first I would refer to the case of Abdul Majid v. Jew Narain Mahto 16 C. 233. In that case Mitter and Macpher on JJ., held that the decision of an issue is one of two suits tried together, which is not appealed against, cannot be treated as res judicata, so far as the same issue was concerned in an appeal against the decision in the other suit.
10. In Mariamnisa Bibi v. Joynab Bibi 33 C. 1101 : 10 C.W.N. 934 : 4 C.L.J. 149, the facts were these. Two Muhammadan co-widows Marimnisa Bibi and Joynab Bibi brought two separate suits for the recovery of their dowers from the estate of their deceased husbands. A question was raised in these suits whether two houses belonged to the estate of the husband. By consent of the parties the Subordinate Judge tried both the suits together and disposed of them in one judgment, it being found that the two houses belonged to Mariamnisa as her separate property. Two separate decrees were drawn up in accordance with that judgment. The other widow Joynab preferred an appeal against the decree in her own suit mainly on the ground that the conclusion arrived at by the Subordinate Judge in the suit of Mariamnisa Bibi respecting the title to the two houses was erroneous, but no appeal was preferred in Marimnisa's suit. At the hearing of the appeal a question was raised on behalf of Mariamnisa that the judgment in her suit not having been appealed against operated as res judicata. It was held by Ghose, C.J., and Harington J, (Rampini J, dissenting) that there was no bar of res judicata. Kampini, J., in his judgment referring to Section 13 of the former Code observes at p. 1107 of the report: "it has also been said that the words 'former suit' in Section 13 cannot relate to Mariamnisa Bibi's suit, as both suits were tried simultaneously and disposed of by one judgment. But there were two distinct suits, two sets of pleadings and issues; and though the two suits were disposed of by one judgment, this is an irregular procedure sanctioned only by consent but not expressly allowed by any section of the Code of Civil Procedure. In the eye of the law there were two judgments, one in each suit, though the Subordinate Judge may have delivered the same judgment in both suits. Hence there were necessarily two appeals. Mariamnisa Bibi's suit was certainly the one first instituted, but be that as it may, as laid down in Gururajammah v. Venkata Krishnama Chetti 24 M. 350, it is the date of the decision, which determines which is the former' and which is the 'scond' suit, and Mariam Bibi's suit was certainly finally decided on the 30th of November 1903, while Joynab's suit is still pending final decision in this appeal. I, therefore, consider that Abdul Majid v. Jew Narain Mahto 16 C. 233 was wrongly decided, and I would accordingly refer the question of the correctness of the decision in it to a Full Bench."
11. I agree in the view Ghose, C.J., in his judgment refers approvingly to the decision in Balkishan v. Kishan Lal 11 A. 148. He remarks at page 1116: "It may be accepted as correct that the expression 'former suit' as occurring in that section, as the Allahabad High Court has held in the case of Balkishan v. Kishan Lal 11 A. 148, and which has been approvingly quoted by the Madras High Court in the case of Gururajammah v. Venkatakrishnama Chetti 24 M. 350 does not relate to the date of commencement of the litigation, but to the time when the Judge is called upon to decide the issue, and 'that the rule contained in Section 13 is not limited to the Courts of first instance and that it equally applies to the procedure of the first and second appellate Courts by reason of sections 582 and 587 respectively, but still the question here is which is the judgment that operates as a bar in this case?" The learned Chief Justice seems to have based his decision entirely upon Section 13 of the Code of Civil Procedure of 1882. At page 1114 he says Section 13 of the Code of Civil Procedure upon which the decision of the question referred to rests, runs as follows:(quotes the section)."
12. In Guruajammah v. Venkata, Krishnama 24 M. 350 the decision in Balkishan v. Kishan Lal 11 A. 148 was approved of arid followed by Sir Arnold White, C.J., and Davies, J.
13. In the later case, however, of Fanchanda Velan v. Vaithinatha Sastrial 29 M. 333 : 16 M.L.J. 63 a different view was taken: In that case cross suits between the same parties on the same facts were tried together and judgment was given on the same day but separate decrees were passed, and an appeal was preferred against one of the decrees alone. It was held by Sir Arnold White, C.J. Subramania Ayyar and Davies, JJ., that the decree unappealed did not operate as a bar under Section 13 of the Code of Civil Procedure, 1882, so as to preclude the appellate Court from dealing with the decree appealed against. We find no reference in the judgment to the earlier decision of the Court in Gumrajmmah v. Vonkata Krishnama 24 M. 350. The judgment is very short. The learned Judges observe that technically, no doubt, the appeal ought to have been in both suits but no weight is given to the technicality. The learned Judges say: "We do not think that either under Section 13 of the Code of Civil Procedure or on general principles, the doctrine of res judicata has any application to the facts of this case. The doctrine does not apply when, as here, the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate Court is asked to decide res judicata." Later on they observe: "It would lead to startling results if we were to hold that an appellate tribunal is precluded from dealing with the question which comes before it on appeal because an inferior Court, upon the same facts, but in a case other than the case under appeal had given a decision which had not been appealed against, at the same time as the decision in the case under appeal." The learned Judges do not point out what would be the startling results to which they apprehended a contrary conclusion would lead. An appellate Court is bound to apply the rule of res judicata even though the decision is the decision of an inferior Court, provided that, that Court was competent to decide the case.
14. I am of opinion after careful consideration of the arguments which have been addressed to us by the learned Vakil and Advocate for the respective parties that the case of Chhajju v. Shea Sahai 10 A. 123, and the subsequent decisions of this Court which followed it were rightly decided. The decree obtained by Manphul stands unreversed and is binding upon the appellant. The time for impeaching it has expired and I am not aware of any procedure by which this decree can now be rendered nugatory. It was suggested during the argument that if the appeal of Zahariya be heard and a decision be obtained in his favour, the appellate decree in his favor will have the effect of superseding the former decree, but this cannot be. A decree unless it be a decree which is a nullity by reason of, for example, fraud, can not be superseded except it be upon appeal in the regular course. This being so, if we acceded to the argument addressed to us we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly and in execution proceedings would cause a complete impasse. I would, therefore, dismiss the appeal.
Tudbal, J.
15. I concur.
Chamier, J.
16. I concur. The Court of first instance wrote only one judgment but a copy of that judgment was placed upon the record of the second suit. The case must be treated, in my opinion, as if two separate judgments had been prepared. There were, of course, two separate decrees. The Code of Civil Procedure requires a separate judgment and decree for each suit or appeal and two or more decrees cannot be challenged by one appeal. In the absence of a provision enabling a Court to consolidate suits and appeals and pass one judgment and one decree instead of as many judgments and decrees as there are suits or appeals, I see no escape from the conclusion that in a case like the one before us or in a case like that of Abdul Basit v. Ashfaq Hussein (sic) A, the appellant must file two appeals if he wishes to avoid the bar of res judicata.
17. The order of the Court is that the appeal be dismissed with costs.