STATE OF ANDHRA PRADESH & ORS. versus B. RANGA REDDY (D) BY LRS & ORS. on 9 August 2019

[2019] 10 S.C.R. 143

STATE OF ANDHRA PRADESH & ORS.

v.

B. RANGA REDDY (D) BY LRs & ORS.

(Civil Appeal No. 17486 of 2017)

AUGUST 09, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Code of Civil Procedure, 1908 – ss.11, 96 and Or. XLI, r.22,Or.XLI, r.33 – Three separate suits were filed against the defendantsincluding the State – First and second suit were in respect of landfalling in Survey No.9 of 2013 of Khairatabad Village – Third suitwas in respect of land falling in Survey Nos.49 and 50 in RasoolpuraVillage – State contested on the ground that the land in all the threesuits fell in Survey No.43 of Village Bholakpur, which is aGovernment Shikkam Talab – All the suits tried together – First twosuits dismissed, however, the third suit was decreed against the State– State filed appeal against the decree in the third suit, which wasobjected on the ground that the findings recorded on Issue No.1 inthe first and second suit have to be treated as decree and wouldoperate as res judicata – High Court inter alia held that without filingcross-objections, the Govt. cannot challenge the findings of thetrial court – On appeal, held: Present is a case where the decree isof dismissal of suit therefore, entirely in favour of the State and notexecutable – Decree of dismissal of the first and second suit hasnot attained finality and are under challenge by the plaintiffs andthe defendants-State are entitled to dispute findings on Issue No.1– All the issues are open for consideration before the First AppellateCourt including the findings of fact on Issue No.1 – Defendantshave right to dispute such findings by filing cross-objections u/Or.XLI, r. 22, as amended in the year 1976 or even in the exercise ofthe powers conferred on the Appellate Court u/Or. XLI, r. 33 –Further, s.11 and Explanation I would be applicable in subsequentproceedings between the same parties or between the parties underwhom they or any of them claimed under the same title – But thefindings in the first and second suit will not operate as res judicataas such findings are subject matter of challenge in the appeals filedby the plaintiffs in their respective suits – High Court failed to draw

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Athe distinction between the decree and a finding on an issue – It isthe decree against which an appeal lies in terms of s.96 – Defendants-State could not file appeal against a decree which was of dismissalof suit simpliciter – Order of the High Court set aside.

Words & expressions – “Decree”, “Judgment” – Meaning ofB– Discussed – Code of Civil Procedure, 1908 – ss.2(2), 2(9).

Suits – Consolidation of – Plea of the respondents drawingdistinction between an order of consolidation of suits and the orderwhere common judgment is rendered in different suits – Held: Nottenable in law.

CAllowing the appeals, the Court

HELD: 1.1 The findings recorded by the High Court arepatently erroneous. The present is a case where the decree is ofdismissal of suit therefore, entirely in favour of the State and notexecutable. [Paras 12, 19] [156-H; 160-D]D

1.2 The decree in Civil Suit No. 274 of 1983 or 276 of 1983(First Suit and Second Suit) has not attained finality and the sameare still subject matter of appeal before the First Appellate Courtwherein, the findings recorded by the trial court can be set asidewhile maintaining ultimate decree of dismissal of the suit. TheEdecree of dismissal of the first and second suit has not attainedfinality which are under challenge by the plaintiffs and thedefendants-State are entitled to dispute findings on Issue No.1even without filing cross objections or in terms of Order XLIRule 33 of the Code of Civil Procedure, 1908 that the decree ofdismissal of suit on the grounds other than what weighed withFthe learned trial court. All the issues are open for considerationbefore the First Appellate Court. [Paras 26, 31] [166-F-G;169-E-F]

1.3 Section 11 and Explanation I of the Code would beapplicable in subsequent proceedings between the same partiesGor between the parties under whom they or any of them claimedunder the same title. But the findings in the first and second suitwill not operate as res judicata as such findings are subject matterof challenge in the appeals filed by the plaintiffs in their respectivesuits. All the three suits have been decided together and the H

three appeals pending against such judgment and decrees.Therefore, it cannot be said that the first and the second suit arethe former suits as the decree passed therein has not attainedfinality. The findings recorded therein will not, therefore, operateas res judicata as the State is not obliged to challenge findings onIssue No.1 in the first and second suit even after the amendmentof Order XLI Rule 22 of the Code. The High Court has failed todraw the distinction between the decree and a finding on an issue.It is the decree against which an appeal lies in terms of Section96 of the Code. Decree in terms of Section 2(2) of the Code meansformal expression of an adjudication conclusively determiningthe rights of the parties. The defendants-State could not file anappeal against a decree which was of dismissal of a suit simpliciter.The findings on Issue No.1 against the State could be challengedby way of cross-objections in terms of amended provisions ofOrder XLI, Rule 22 of the Code but such filing of cross-objectionsis not necessary to dispute the findings recorded on Issue No. 1as the defendants have a right to support the ultimate decreepassed by the trial court of dismissal of suit on grounds otherthan which weighed with the learned trial court. Even in terms ofOrder XLI Rule 33 of the Code, the Appellate Court has thejurisdiction to pass any order which ought to have been passedor made in proceedings before it. As per facts on record, OriginalSuit Nos. 274 of 1983 and 276 of 1983 have been dismissed. Theplaintiffs are in appeal in both the suits before the First AppellateCourt. Therefore, such decree including the finding on Issue No.1 has not attained finality as the Appellate Court is seized of theentire controversy including the findings of fact on Issue No.1.The defendants have a right to dispute such findings by filingcross-objections under Order XLI, Rule 22 of the Code asamended in the year 1976 or even in the exercise of the powersconferred on the Appellate Court under Order XLI Rule 33 ofthe Code. [Paras 32, 36 and 37] [169-G-H; 170-A-B; 173-C-F]

1.4 The decree is of dismissal of the suit, whereas, thereasons for passing such decree is judgment as defined in Section2(9) of the Code. In terms of Section 11 read with Explanation I,the issue in a former suit will operate as res judicata only if suchissue is raised in a subsequent suit. Since, the issue of title has AB

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Anot attained finality, therefore, it is not a former suit to whichthere can be any application of Section 11. The order passed bythe High Court in the first appeal filed by the State is set aside,as the findings on Issue Nos. 1 and 2 in the first and second suitdo not operate as res judicata. [Paras 38, 39] [173-G-H;174-A-B]

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Ramesh Chandra v. Shiv Charan Dass AIR 1991 SC264 : [1990] Suppl. SCR 97 ; S. Nazeer Ahmed v. StateBank of Mysore & Ors. (2007) 11 SCC 75 : [2007]1 SCR 843 – relied on.

Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.[1962] 3 SCR 759 ; Ashok Nagar Welfare Association& Anr. v. R. K. Sharma & Ors. (2002) 1 SCC 749 :[2001] 5 Suppl. SCR 662 ; Bhanu Kumar Jainv. Archana Kumar and Another (2005) 1 SCC787 : [2004] 6 Suppl. SCR 1104 – held inapplicable.

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Narhari & Ors. v. Shankar & Ors. AIR 1953 SC419 : [1950] SCR 754 ; Ganga Bai v. Vijay Kumar &Ors. (1974) 2 SCC 393 : [1974] 3 SCR 882 ; Banarsi& Ors. v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR 22 ; Hardevinder Singh v. Paramjit Singh & Ors. (2013)E9 SCC 261 : [2013] 1 SCR 903 ; Sri Gangai VinayagarTemple & Anr. v. Meenakshi Ammal & Ors. (2015) 3SCC 624 : [2014] 12 SCR 845 ; Chitivalasa Jute Millsv. Jaypee Rewa Cement (2004) 3 SCC 85 ; SheodanSingh v. Daryao Kunwar (Smt.) [1966] 3 SCR 300 ;FLonankutty v. Thomman & Anr. (1976) 3 SCC528 : [976] Suppl. SCR 74; Premier Tyres Limited v.Kerala State Road Transport Corporation (1993) Supp.(2) SCC 146 ; Harbans Singh & Ors. v. Sant Hari Singh& Ors. (2009) 2 SCC 526 : [2009] 1 SCR 250 ; NirmalaBala Ghose v. Balai Chand Ghose [1965] 3 SCR 550 ;GGovindammal (D) by LRs & Ors. v. Vaidyanathan &Ors. (2018) 14 SCALE 198 – referred to.

Case Law Reference

[1950] SCR 754H[1974] 3 SCR 882

referred toPara 5referred toPara 5

STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY(D) BY LRs & ORS.

[2003] 2 SCR 22referred toPara 5[2013] 1 SCR 903referred toPara 5[2014] 12 SCR 845referred toPara 5(2004) 3 SCC 85referred toPara 5[1990] Suppl. SCR 97relied onPara 5[2007] 1 SCR 843relied onPara 5[1966] 3 SCR 300referred toPara 6[1976] Suppl. SCR 74referred toPara 61993 Supp. (2) SCC 146referred toPara 6[2009] 1 SCR 250referred toPara 6[2001] 5 Suppl. SCR 662held inapplicablePara 6[1965] 3 SCR 550referred toPara 6[2004] 6 Suppl. SCR 1104held inapplicablePara 6(2018) 14 SCALE 198referred toPara 8[1962] 3 SCR 759held inapplicablePara 25CIVIL APPELLATE JURISDICTION : Civil Appeal No. 17486of 2017.

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From the Judgment and Order dated 01.10.2012 by the High Courtof Judicature of Andhra Pradesh at Hyderabad in City Civil Court AppealNo. 194/1998.

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Civil Appeal No. 17487 of 2017

Contempt Petition (C) No. 204/2014 in SLP (C) No. 8243 of 2013.

Dushyant A. Dave, V. Giri, C. S. Vaidhyanthan, Jay Savla, P.Venugopal, Gopal Sankarnarayanan, Sr. Advs., Ms. Bina Madhavan,Ms. Akanksha Mehra, Ms. Elizabeth Anthony, Ms. Sweena Nair, M. P.Shorawala, P. Venkat Reddy, Prashant Tyagi, Anirudh Gupta, AkshayManorajan, Dr. Raja Ram Punna, Ms. Suveni Bhagat, M/s. Venkat PalwaiLaw Associates, G. N. Reddy, Ms. Renuka Sahu, Anurag, VenkateswaraRao Anumolu, Chandra Mohan Anisethy, K. K. Mani, B. V. S. Sita G

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ARamaraju, Ms. Vasudha Singh, M/s. Lawyer S Knit & Co., Annam D.N. Rao, Sateesh Galla, N. Rajaraman, B. Shravanth Shanker, Ms.Monalisa Kosaria, Vishal Sinha, Advs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.B

1. The challenge in the present appeals is to an order passed bythe High Court of judicature of Andhra Pradesh at Hyderabad on October01, 2012 whereby an appeal filed by the appellants was found to be hitby the principle of res judicata and was dismissed.

C2. The brief facts leading to the present appeals are that threeseparate suits were filed against the defendants including the State: first,Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprisingin Survey No. 9 of 2013 of Khairatabad Village; second suit bears OriginalSuit No. 276 of 1983 in respect of 3 guntas of land comprising in SurveyNo. 9 of 2013 of Khairatabad Village; and third suit bears Original SuitDNo. 141 of 1984 which has been filed in respect of land measuring 19.23guntas in respect of land falling in Survey Nos. 49 and 50 in RasoolpuraVillage. The stand of the State in all the suits is that the land in all thethree suits falls in Survey No. 43 of Village Bholakpur, which is aGovernment Shikkam Talab measuring 145 acres 35 guntas, popularlyEknown as Hussain Sagar Talab. All three suits were tried together. Theevidence was recorded in Original Suit No. 274 of 1983. The issues andthe findings recorded by the learned trial court on issues of title are asunder:

“ORIGINAL SUIT NO. 274 OF 1983 – FIRST SUITFIssues

1) Whether the suit property is part of Sy. No. 9/13 ofKhairatabad Village as claimed by the plaintiff or whether itis a part of Sy. Nos. 49 and 50 of Rasoolpura Village asclaimed by the defendants 1 to 4 or whether it is the part ofGSy. No. 43 of Bholakpur Village as claimed by theGovernment?Finding Para 40. The plaintiff miserably failed to establish that thesuit property forms part of Sy. No. 9/13 of Khairatabad H

Village. But the defendants 1 to 4 clearly established that itforms part of Sy. Nos. 49 and 50 of Rasoolpura. However,the Government also failed to established that the suit landforms part of Sy. No. 43 of Bholakpur Village.

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2) Whether the plaintiff is entitled for declaration of his title tothe suit property and whether he is entitled for theBconsequential relief of permanent injunction or in thealternative for possession of the suit property?

Finding

Para 41. The plaintiff miserably failed to establish his titleand possession in the suit property and as such, he is notentitled for the relief of declaration or permanent injunctionor possession.

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3) To what relief?

Finding

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Para 44. In the result, the suit is dismissed with costs.

ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT

Issues

1) Whether the suit property is part of Sy. No. 9/13 ofKhairatabad Village as claimed by the plaintiff or whether itis a part of Sy. No. 49 and 50 of Rasoolpura village as claimedby the defendants 1 and 2 or whether it is the part of Sy. No.43 of Bholakpur Village as claimed by the Government?

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Finding

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Para 45. Issue No. 1 in Original Suit No. 274 of 1983 andthis issue are practically one and the same and as such thefinding on issue No. 1 in Original Suit No. 274 of 1983 holdsgood for this issue also.

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2) Whether the plaintiff is entitled for declaration of his title tothe suit property and Whether he is entitled for theconsequential relief of permanent injunction or in thealternative for possession of the suit property?

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AFinding

Para 46. The plaintiff in this suit also failed to establish histitle and possession in the suit property and as such, he is notentitled for the reliefs of declaration or permanent injunctionor alternative relief of possession.

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3) To what relief?

Finding

Para 49. In the result, the suit is dismissed with costs.

ORIGINAL SUIT NO. 141 OF 1984 – THIRD SUIT

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Issues

1) Whether the suit property is part of Sy. Nos. 49 and 50 ofRasoolpura Village as claimed by the plaintiffs or Whether itis part of Sy. No. 9/13 of Khairatabad Village as claimed bythe defendants 1 and 2 or Whether it is part of Sy. No. 4J ofBholakpur Village as claimed by the Government?

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Finding

Para 50. The finding on Issue No. 1 in Original Suit No. 274of 1983 holds good for this issue also.

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2) Whether the plaintiff are entitled for declaration of their titleto the suit property and Whether they are entitled for theconsequential relief of permanent injunction or in thealternative for possession of the suit property?

Finding

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Para 52. The plaintiffs could establish their title in the suitproperty and as such they are entitled for the reliefs ofdeclaration and possession. Though they were in possessionof the property originally, the Special Executive Magistratetook possession of the property after the initiation of Section145 Cr.P.C. proceedings. So the Government is bound tosurrender possession to the plaintiffs in this Suit.

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3) To what relief?Finding

Para 56. In the result, the suit is decreed with costs, asprayed for. The Government is erected to deliver possessionof the suit property to the plaintiffs within 2 months. However,this finding shall not come in the way of the Urban LandCeiling authorities to initiate proceedings to take possessionof the excess land, if any, from the plaintiffs (in Original SuitNo. 141 of 1984). Similarly, the Government is also at libertyto acquire any portion of the suit land for public purposes byfollowing the necessary procedure and by paying the adequatecompensation to the plaintiffs.”

3. The State filed appeal arising out of judgment and decree inOriginal Suit No. 141 of 1984 (Third Suit). In the said appeal, an objectionwas raised that the findings recorded on Issue No. 1 in Original SuitNos. 274 of 1983 and 276 of 1983 have to be treated as decree andwould operate as res judicata. The High Court while hearing suchobjections in appeal framed the following two points for consideration:

“1) Whether the findings of the lower Court on issue No. 1 inO.S. Nos. 274 and 276 of 1983 have to be treated as decree andwhether they operate as res judicata against the Government,since the Government have not filed any appeals challenging thesaid findings?

2) Whether the Government of Andhra Pradesh was not requiredto file appeals on the ground that no enforceable decree waspassed against it?”

4. The High Court held that decision on issues or any matter incontroversy shall be deemed to be decree in view of reading of OrderXIV Rule 1 of the Code of Civil Procedure, 1908[1]. The High Courtnoticed the fact that in the third suit, there was a specific direction todeliver possession of the suit property to the plaintiff within two monthsbut there is no specific direction against the Government in the first andthe second suit but the fact remains that specific finding is given in thosecases that Government failed to establish that the suit land forms part ofSurvey No.43 of Bholakpur Village. Thus, there is clear declaration ofright and title of the parties. The High Court held as under:

1 for short, ‘Code’

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A“In the present case, there is clear finding against the Government.When there is a clear finding that the suit land does not form partof Survey No. 43 of Bholakpur Village as claimed by theGovernment, it was obligatory on the part of the Government tofile cross-objections. What Government can do is it can supportthe findings of the lower court. The findings of the lower courtBare that the suit land forms part of Survey No. 49 and 50 ofRasoolpura Village. Obviously, the Government cannot supportsuch finding, because its case is that the suit land forms part ofSurvey No. 43 of Bholakpur Village.

In the appeals filed by the plaintiffs, the main question that fallsCfor consideration is whether the suit properties form part of SurveyNo. 9/13 of Khairatabad village or it forms part of Survey Nos.49 and 50 of Rasoolpura village. The question whether the suitland forms part of Survey No. 43 of Bholakpur village as claimedby the Government does not fall for consideration in the appealsDin CCCA 1 of 1999 or CCCA No. 9 of 1999 i.e., appeals filed bythe plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, withoutfiling cross-objections the Government cannot challenge thefindings of the trial court.”

5. Mr. Vaidyanathan, learned senior counsel for the State reliedEupon judgments of this Court in Narhari & Ors. v. Shankar & Ors.[2],Ganga Bai v. Vijay Kumar & Ors.[3], Banarsi & Ors. v. Ram Phal[4],Hardevinder Singh v. Paramjit Singh & Ors.[5], Sri Gangai VinayagarTemple & Anr. v. Meenakshi Ammal & Ors.[6], Chitivalasa Jute Millsv. Jaypee Rewa Cement[7], Ramesh Chandra v. Shiv Charan Dass[8]and S. Nazeer Ahmed v. State Bank of Mysore & Ors.[9] to contendFthat the defendants in the first and the second suit had no right to file anappeal against the decree of dismissal of suits passed in such suits. Theappeal would not lie against the findings recorded when the decree isonly of dismissal of the suits. It is argued that the effect of amendment 2 AIR 1953 SC 419G3 (1974) 2 SCC 3934 (2003) 9 SCC 6065 (2013) 9 SCC 2616 (2015) 3 SCC 6247 (2004) 3 SCC 858 AIR 1991 SC 2649 (2007) 11 SCC 75H

in Order XLI Rule 22 of the Code vide Central Act No. 104 of 1976 isonly to enable an aggrieved person to file cross objections but that doesnot take away the right of an aggrieved person to support the decree ofdismissal of the suit in appeal on the grounds other than what weighedwith the learned trial court in dismissing the suit. It is contended thatappeal lies against the decree passed and not the judgment giving thereasons to pass a decree. It is further contended that the State has aright to agitate the findings on Issue No. 1 in terms of the provisions ofOrder XLI Rule 33 of the Code as well, therefore, the findings recordedon Issue No. 1 are not final so as to operate res judicata against thedecree in the third suit which is the subject matter of challenge by theState. It is contended that the State has filed cross objections beforehearing of the appeal though after the order of the High Court, thus, thefindings recorded on Issue No. 1 have not attained finality which canoperate as res judicata. It is contended that the judgments referred toby the learned counsel for the respondents are in the cases where thedecree had attained finality. But none of the judgments referred to bythe learned counsel for the respondents pertains to a finding recorded ina civil suit which was dismissed and is subject matter of challenge inappeal by the plaintiff himself.

6. On the other hand, Mr. Dushyant Dave, learned senior counselfor the respondents argued that there is a categorical finding recordedby the trial court that land does not fall in part of Survey No. 43 ofBholakpur Village, as per the stand of the Appellants in all three suits,therefore, it was mandatory for the defendants to impugn such findingsby way of an appeal in the first and second suit as well. Since the Statehas not filed any appeal against the findings recorded in the first and thesecond suit, the findings recorded therein will operate as res judicataand the appeal arising out of the third suit is barred by res judicata.Learned counsel for the respondents relied upon the judgments of thisCourt in Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.[10],Sheodan Singh v. Daryao Kunwar (Smt.)[11], Lonankutty v. Thomman& Anr.[12], Premier Tyres Limited v. Kerala State Road TransportCorporation[13], Harbans Singh & Ors. v. Sant Hari Singh & Ors.[14], 10 1962 (3) SCR 759

11 1966 (3) SCR 300

12 (1976) 3 SCC 528

13 1993 Supp. (2) SCC 146

14 (2009) 2 SCC 526

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AAshok Nagar Welfare Association & Anr. v. R. K. Sharma & Ors.[15],Nirmala Bala Ghose v. Balai Chand Ghose[16], Bhanu Kumar Jainv. Archana Kumar and Another[17].

7. Mr. Dave submits that the judgments referred to by the learnedcounsel for the appellants are not applicable to the facts of the presentBcase. He argued that res judicata applies not only to the decree but itbars the Court to try any suit or issue in which the matter has beendirectly and substantially in issue in former suit. It is, thus, contendedthat principle of res judicata are not only against the final judgment anddecree but also in respect of any finding recorded in the suit.

C8. Mr. Jai Savla, learned senior counsel, relied upon anotherjudgment of this Court in Govindammal (D) by LRs & Ors. v.Vaidyanathan & Ors.[18] to contend that plea of res judicata is applicableeven in respect of co-defendants.

9. Respondent No. 8 in the written submissions relies upon SriDGangai Vinayagar Temple to contend that the filing of a Single Appealwould lead to entire dispute becoming sub judice only if suits areconsolidated. Since, three suits in question were not consolidated,therefore, non-filing of the appeal by the appellants in first and secondsuit will operate as res judicata.

E10. Learned counsel for the appellants has produced a photocopyof the decree in the Original Suit No. 274 of 1983 which is to the effect“that the suit be and the same is hereby dismissed”.

11. To appreciate arguments of the learned counsel for the parties,certain statutory provisions from the Code need to be extracted beforethe judgments referred to by the learned counsel for the parties areFconsidered.

“2(9) “judgment” means the statement given by the Judge on thegrounds of a decree or order; 2(2) “decree” means the formal expression of an adjudicationGwhich, so far as regards the Court expressing it, conclusivelydetermines the rights of the parties with regard to all or any of the 15 (2002) 1 SCC 74916 1965 (3) SCR 55017 (2005) 1 SCC 787H18 (2018) 14 SCALE 198

matters in controversy in the suit and may be either preliminary orfinal. It shall be deemed to include the rejection of a plaint and thedetermination of any question within section 144, but shall notinclude –

(a) any adjudication from which an appeal lies as an appeal froman order, or (b) any order of dismissal for default.

96. Appeal from original decree

(1) Save where otherwise expressly provided in the body ofthis Code or by any other law for the time being in force, anappeal shall lie from every decree passed by any Court exercisingoriginal jurisdiction to the Court authorized to hear appeals fromthe decisions of such Court.

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Order XLI Rule 22. Upon hearing, respondent may object todecree as if he had preferred a separate appeal

(1) Any respondent, though he may not have appealed fromany part of the decree, may not only support the decree [19][butmay also state that the finding against him in the Court below inrespect of any issue ought to have been in his favour; and mayalso take any cross-objection] to the decree which he could havetaken by way of appeal:

Provided he has filed such objection in the Appellate Court withinone month from the date of service on him or his pleader of noticeof the day fixed for hearing the appeal, or within such further timeas the Appellate Court may see fit to allow.

19[Explanation.- A respondent aggrieved by a finding of the Courtin the judgement on which the decree appealed against is basedmay, under this rule, file cross-objection in respect of the decreein so far as it is based on that finding, notwithstanding that byreason of the decision of the Court on any other finding which issufficient for the decision of the suit, the decree, is, wholly or inpart, in favour of that respondent.]

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Order XLI Rule 33. Power of Court of Appeal The Appellate Court shall have power to pass any decree andmake any order which ought to have been passed or made and topass or make such further or other decree or order as the casemay require, and this power may be exercised by the Courtnotwithstanding that the appeal is as to part only of the decreeand may be exercised in favour of all or any of the respondents orparties, although such respondents or parties may not have filedany appeal or objection, and may, where there have been decreesin cross-suits or where two or more decrees are passed in onesuit, be exercised in respect of all or any of the decrees, althoughan appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order undersection 35A, in pursuance of any objection on which the Courtfrom whose decree the appeal is preferred has omitted or refusedto make such order.

Section 11 - Res judicata

No Court shall try any suit or issue in which the matter directlyand substantially in issue has been directly and substantially inissue in a former suit between the same parties, or between partiesunder whom they or any of them claim, litigating under the sametitle, in a Court competent to try such subsequent suit or the suit inwhich such issue has been subsequently raised, and has beenheard and finally decided by such Court.

Explanation I - The expression “former suit” shall denote a suitwhich has been decided prior to the suit in question whether ornot it was instituted prior thereto.”

12. The High Court referred to various judgments in respect ofapplicability of the principle of res judicata, therefore, non-filing of theappeal by the State in the other two suits operates as res judicata. TheHigh Court referred to a judgment of this Court in Sheodan Singhwherein, this Court held that once a decree passed in the suit attainsfinality, it cannot be disturbed indirectly by adjudicating the very samequestions in another appeal. We find that the findings recorded by theHigh Court are patently erroneous for the reasons recorded hereinafter.

Therefore, non-filing of the appeal by the State in the other two suitsoperates as res judicata in the third suit.

13. The learned trial court had clubbed all the three suits and thatcommon evidence was recorded, when it recorded the following fact:

“All the above three suits have been clubbed and a joint trial hasbeen held. O.S.No.274/83 has been taken as the leading suit andthe evidence recorded in that suit has been taken as the evidencefor the remaining two suits also. The parties to all the three suitscan be divided into three groups…...”

14. Learned counsel for the respondents has tried to drawdistinction between an order of consolidation of suits and the order wherea common judgment is rendered in different suits. In Sri GangaiVinayagar Temple, the Court referred to judgment in Chitivalasa JuteMills. However, we find that distinction drawn by learned counsel forthe respondents is not tenable in law. Chitivalasa Jute Mills is a casewhere one suit was filed at Reva in Madhya Pradesh and another inVishakhapatnam. The Court noticed that claim in one suit is a defensein another suit, therefore, the order was passed for transfer of asubsequent suit filed at Reva to Vishakhapatnam.

15. In the present case, evidence have been recorded only in onesuit as all the three suits have been clubbed together. In view of the saidfact, we find that merely the word consolidation has not been used bythe learned trial court, therefore, it will not be a case of consolidation ofsuits but of separate trials.

16. In Banarsi, the provisions of Order XLI Rule 22 of the Codeas it existed before and after the amendment in 1976 as well as OrderXLI Rule 33 of the Code have been considered. The said judgmentarises out of a fact where a suit for specific performance of an agreementwas filed by the respondent in appeal before this Court. The appellantsalso filed a suit seeking cancellation of the agreement, the basis of thesuit for specific performance. The learned trial court ordered theappellants to deposit a sum of Rs.2,40,000/- but the decree for specificperformance was not granted. Two appeals were taken up for hearingpreferred by the appellants by the learned Additional District Judge.Both the appeals were dismissed but without any cross objections or anappeal, the Court decreed the suit for specific performance filed by the A

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Aplaintiffs. The second appeal before the High Court was dismissed. Itwas held that the First Appellate Court committed no error of lawexercising the powers under Order XLI Rule 33 of the Code to pass adecree for specific performance.

17. This Court examined the question as to whether decree forBspecific performance could be granted once declined by the trial courtwithout filing any appeal or cross-objections. The Court held as under:

“8. Sections 96 and 100 CPC make provision for an appeal beingpreferred from every original decree or from every decree passedin appeal respectively; none of the provisions enumeratesCthe person who can file an appeal. However, it is settled by along catena of decisions that to be entitled to file an appeal theperson must be one aggrieved by the decree. Unless a person isprejudicially or adversely affected by the decree he is not entitledto file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. GolchaDProperties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. VijayKumar[(1974) 2 SCC 393] .) No appeal lies against a mere finding.It is significant to note that both Sections 96 and 100 CPC providefor an appeal against decree and not against judgment.

9. Any respondent though he may not have filed an appeal fromEany part of the decree may still support the decree to the extentto which it is already in his favour by laying challenge toa finding recorded in the impugned judgment againsthim…………………………A party who has fully succeeded inthe suit can and needs to neither prefer an appeal nor take anyFcross-objection though certain finding may be against him. Appealand cross-objection — both are filed against decree and notagainst judgment and certainly not against any finding recordedin a judgment. This was the well-settled position of law under theunamended CPC.”

G18. This Court while considering the amendments made in theCode in the year 1976, held that even under the amended provisions ofOrder XLI Rule 22 of the Code, a party in whose favour the decreestands in its entirety is neither entitled nor obliged to prefer any crossobjections. However, by an amendment in Order XLI Rule 22 of theCode, it is permissible to file cross objections against the finding. The H

respondent may defend himself without filing any cross objections to theextent to which decree is in his favour. The Court held as under:

“10. The CPC amendment of 1976 has not materially orsubstantially altered the law except for a marginal difference.Even under the amended Order 41 Rule 22 sub-rule (1) a party inwhose favour the decree stands in its entirety is neither entitlednor obliged to prefer any cross-objection. However, the insertionmade in the text of sub-rule (1) makes it permissible to file across-objection against a finding. The difference which hasresulted we will shortly state. A respondent may defend himselfwithout filing any cross-objection to the extent to which decree isin his favour; however, if he proposes to attack any part of thedecree he must take cross-objection. The amendment inserted bythe 1976 amendment is clarificatory and also enabling and thismay be made precise by analysing the provision. There may bethree situations:

(i) The impugned decree is partly in favour of the appellantand partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent thoughan issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and allthe issues have also been answered in favour of the respondentbut there is a finding in the judgment which goes against therespondent.

11. In the type of case (i) it was necessary for the respondent tofile an appeal or take cross-objection against that part of the decreewhich is against him if he seeks to get rid of the same though thatpart of the decree which is in his favour he is entitled to supportwithout taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendmentCPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Underthe amended CPC, read in the light of the explanation, though it isstill not necessary for the respondent to take any cross-objectionlaying challenge to any finding adverse to him as the decreeis entirely in his favour and he may support the decree without A

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Across-objection; the amendment made in the text of sub-rule (1),read with the explanation newly inserted, gives him a right to takecross-objections to a finding recorded against him either whileanswering an issue or while dealing with an issue. The advantageof preferring such cross-objection is spelt out by sub-rule (4). Inspite of the original appeal having been withdrawn or dismissedBfor default, the cross-objection taken to any finding by therespondent shall still be available to be adjudicated upon on meritswhich remedy was not available to the respondent under theunamended CPC. In the pre-amendment era, the withdrawal ordismissal for default of the original appeal disabled the respondentCto question the correctness or otherwise of any finding recordedagainst the respondent.”

19. The present is a case where the decree is of dismissal of suittherefore, entirely in favour of the State and not executable. Though anissue has been decided against the State as falling within second andDthird situation delineated by this Court. This Court held that in the absenceof cross appeals or cross objections, the First Appellate Court did nothave the jurisdiction to modify the decree that is to grant decree forspecific performance which was not granted by the trial court.

20. The Court did not find any merit in the argument that theEAppellate Court was not powerless to grant decree as such decree hasbeen granted in terms of Order XLI Rule 33 of the Code. The Courtheld as under:

“15. … While allowing the appeal or otherwise interfering withthe decree or order appealed against, the appellate court mayFpass or make such further or other, decree or order, as the casewould require being done, consistently with the findings arrived atby the appellate court. The object sought to be achieved byconferment of such power on the appellate court is to avoidinconsistency, inequity, inequality in reliefs granted to similarlyplaced parties and unworkable decree or order coming intoGexistence. The overriding consideration is achieving the ends ofjustice. Wider the power, higher the need for caution and carewhile exercising the power. Usually the power under Rule 33 isexercised when the portion of the decree appealed against or theportion of the decree held liable to be set aside or interfered by H

the appellate court is so inseparably connected with the portionnot appealed against or left untouched that for the reason of thelatter portion being left untouched either injustice would result orinconsistent decrees would follow. The power is subject to at leastthree limitations: firstly, the power cannot be exercised to theprejudice or disadvantage of a person not a party before the court;secondly, a claim given up or lost cannot be revived; and thirdly,such part of the decree which essentially ought to have beenappealed against or objected to by a party and which that partyhas permitted to achieve a finality cannot be reversed to theadvantage of such party. A case where there are two reliefsprayed for and one is refused while the other one is granted andthe former is not inseparably connected with or necessarilydepending on the other, in an appeal against the latter, the formerrelief cannot be granted in favour of the respondent by the appellatecourt exercising power under Rule 33 of Order 41.”

21. Such view of the Court has been followed in a judgment inHardevinder Singh. The said judgment arises out of a suit filed forpossession of the suit land, challenging the Will said to be executed infavour of the defendants. The suit for joint possession was decreedholding that the Will is surrounded by suspicious circumstances and thatthe suit land was joint Hindu family property. In an appeal, the FirstAppellate Court recorded a finding that the property of the deceasedShiv Singh was self-acquired and that the Will in favour of defendantNos. 1 to 4 was validly executed. The First Appellate Court dismissedthe suit for the reason that there is a settlement between the parties.The defendant No. 5, brother of the Plaintiff who had similar interest asthat of the plaintiff, aggrieved against the said judgment and decreepassed by the First Appellate Court filed the second appeal, which wasdismissed as not maintainable. In these circumstances, this Court heldthat a person has a right to maintain an appeal if such person isprejudicially or adversely affected by a decree. It was held that defendantNo. 5, brother of the plaintiff benefited from the decree granted by thetrial court but the plaintiff has settled the dispute with defendant Nos. 1to 4, the rights of defendant No. 5 were unsettled and the benefit accruedin his favour became extinct, therefore, he had suffered a legal injurywhich could be challenged in second appeal. With the said finding, the AB

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Ajudgment of the High Court was set aside and the matter was remittedto the High Court to decide afresh. This Court held as under:

“21. After the 1976 Amendment of Order 41 Rule 22, the insertionmade in sub-rule (1) makes it permissible to file a cross-objectionagainst a finding. The difference is basically that a respondentmay defend himself without taking recourse to file a cross-objectionto the extent the decree stands in his favour, but if he intends toassail any part of the decree, it is obligatory on his part to file thecross-objection. In Banarsi v. Ram Phal [(2003) 9 SCC 606 : AIR2003 SC 1989] , it has been observed that the amendment insertedin 1976 is clarificatory and three situations have been adverted totherein. Category 1 deals with the impugned decree which is partlyin favour of the appellant and partly in favour of the respondent.Dealing with such a situation, the Bench observed that in such acase, the respondent must file an appeal or take cross-objectionagainst that part of the decree which is against him if he seeks toget rid of the same though he is entitled to support that part of thedecree which is in his favour without taking any cross-objection.In respect of two other categories which deal with a decree entirelyin favour of the respondent though an issue had been decidedagainst him or a decree entirely in favour of the respondent whereall the issues had been answered in his favour but there is a finding B

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in the judgment which goes against him, in the pre-amendmentstage, he could not take any cross-objection as he was not a personaggrieved by the decree. But post-amendment, read in the lightof the Explanation to sub-rule (1), though it is still notnecessary for the respondent to take any cross-objectionlaying challenge to any finding adverse to him as the decreeis entirely in his favour, yet he may support the decree withoutcross-objection. It gives him the right to take cross-objectionto a finding recorded against him either while answering anissue or while dealing with an issue. It is apt to note that afterthe amendment in the Code, if the appeal stands withdrawn ordismissed for default, the cross-objection taken to a finding by therespondent would still be adjudicated upon on merits which remedywas not available to the respondent under the unamended Code.”

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22. The judgment in Sri Gangai Vinayagar Temple is relied uponby both the parties. Learned counsel for the appellants relies upon para25 of the order whereas, counsel for the respondents relies upon para 27of the order. Both the paragraphs read as under:

“25. On the issue of applicability of res judicata in cases wheretwo or more suits have been disposed of by one common judgmentbut separate decrees, and where the decree in one suit has beenappealed against but not against the others, various High Courtshave given divergent and conflicting opinions and decisions……….

……..Without adverting to the details of those cases, it is sufficientto note that the hesitancy or reluctance to the applicability of therigorous of res judicata flowed from the notion that Section 11 ofthe Code refers only to “suits” and as such does not include“appeals” within its ambit; that since the decisions arrived in theconnected suits were articulated simultaneously, there could beno “former suit” as stipulated by the said section; that substance,issues and finding being common or substantially similar in theconnected suits tried together, non-filing of an appeal against oneor more of those suits ought not to preclude the consideration ofother appeals on merits; and that the principle of res judicata wouldbe applicable to the judgment, which is common, and not to thedecrees drawn on the basis of that common judgment.

27. Procedural norms, technicalities and processal law evolveafter years of empirical experience, and to ignore them or givethem short shrift inevitably defeats justice. Where a commonjudgment has been delivered in cases in which consolidation ordershave specifically been passed, we think it irresistible that the filingof a single appeal leads to the entire dispute becoming sub judiceonce again. Consolidation orders are passed by virtue of thebestowal of inherent powers on the courts by Section 151 CPC,as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee RewaCement (2004) 3 SCC 85. In the instance of suits in which commonissues have been framed and a common trial has been conducted,the losing party must file appeals in respect of all adverse decreesfounded even on partially adverse or contrary speaking judgments.

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AWhile so opining we do not intend to whittle down the principlethat appeals are not expected to be filed against every inconvenientor disagreeable or unpropitious or unfavourable finding orobservation contained in a judgment, but that this can be done byway of cross-objections if the occasion arises. The decree notassailed thereupon metamorphoses into the character of a “formerBsuit”. If this is not to be so viewed, it would be possible to set atnaught a decree passed in Suit A by only challenging the decree inSuit B. Law considers it an anathema to allow a party to achievea result indirectly when it has deliberately or negligently failed todirectly initiate proceedings towards this purpose. Laws ofCprocedure have picturesquely been referred to as handmaidensto justice, but this does not mean that they can be wantonly ignoredbecause, if so done, a miscarriage of justice inevitably andinexorably ensues. Statutory law and processual law are two sidesof the judicial drachma, each being the obverse of the other. Inthe case in hand, had the tenant diligently filed an appeal againstDthe decree at least in respect of OS No. 5 of 1978, the legalconundrum that has manifested itself and exhausted so muchjudicial time, would not have arisen at all.”

23. It may be noticed that separate decree is required to bepreferred in each suit even though the suits are consolidated. The three-EJudge Bench in Sri Gangai Vinayagar Temple has categorically heldthat where a common judgment has been delivered in cases in whichconsolidation orders have been passed, the filing of an appeal leads tothe entire dispute becoming sub judice again. The aforesaid judgmentarises out of the fact whether tenant has filed a suit to protect itsFpossession during the lease period which was coming to an end onJanuary 1, 1983, claiming injunction not specifically challenging thealienation by the trustees of a public trust. The trustees have filed twoseparate suits for claiming arrears of rent, one for claiming Rs. 268/-and another for Rs. 2600/.

G24. The tenant’s suit and the suit for the recovery of Rs. 2600/-were dismissed. Only one appeal was preferred by the tenant againstthe decree passed in the suit for recovery of Rs. 268/-. In thesecircumstances, it was held that since the claim of the tenant in his suitwas substantially in respect of the right of the trustees to alienate the H

property of the trust as alleged by the tenant, which is the issue in theother suits as well, therefore, the decree in the suit for injunction filed bythe plaintiff would operate as res judicata. But in the present case, anappeal in the first and second suit is pending in which the appellant hasright to support decree in terms of Order XLI Rules 22 and 33 of theCode.

25. Learned counsel for the respondents strongly relies upon aConstitution Bench judgment of this Court in Badri Narayan Singh tocontend that the findings recorded in one appeal operate as res judicatain the second appeal. To appreciate such argument, some facts leadingto the said judgment need to be mentioned. The election of the appellantwas challenged before the Election Tribunal on the ground that theappellant was holding an office of profit and, therefore, it is against theprovisions of Section 7 of the Representation of the People Act, 1951.There was allegation that appellant had also committed corrupt practices.On the other hand, respondent filed a petition praying for the declarationthat the election of the appellant was void and also claimed declarationthat he was duly elected having polled more votes after appellant- electedcandidate. The Election Tribunal found that the appellant was not holderof office of profit but held that he is guilty of corrupt practices. Theelection of the appellant was set aside but did not grant the declarationthat the respondent was duly elected candidate. The appellant filedElection Appeal No. 7 of 1958 whereas the respondent filed ElectionAppeal No. 8 of 1958 in the High Court against the order of the ElectionTribunal. The appeal filed by the appellant was dismissed holding that hewas holding office of profit but has not indulged in corrupt practicewhereas the appeal filed by the respondent was allowed by a commonjudgment declaring the respondent to be duly elected. The appellant filedappeal before this Court only against the order in Appeal No. 8 of 1958.All the grounds of the appeal relate to the finding of the High Court inAppeal No. 7 of 1958. In appeal before this Court, a preliminary objectionwas taken that no appeal was preferred by the appellant against theorder of the High Court in Appeal No. 7 of 1958. The Court distinguishedthe earlier judgment in Narhari. It held that though Appeal Nos. 7 and8 of 1958 arose out of one proceeding but subject matter of each appealwas different, therefore, the final judgment would operate as res judicata.The relevant findings read as under:

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A“14. It is true that both the Appeals Nos. 7 and 8 before the HighCourt arose out of one proceeding before the Election Tribunal.The subject-matter of each appeal was, however, different. Thesubject-matter of Appeal No. 7 filed by the appellant related tothe question of his election being bad or good, in view of thepleadings raised before the Election Tribunal. It had nothing to doBwith the question of right of Respondent 1 to be declared as dulyelected candidate……….. The finding about his holding anoffice of profit served the purpose of both the appeals, butmerely because of this the decision of the High Court in eachappeal cannot be said to be one decision. The High CourtCcame to two decisions. It came to one decision in respect of theinvalidity of the appellant’s election in Appeal No. 7. It came toanother decision in Appeal No. 8 with respect to the justificationof the claim of Respondent 1 to be declared as a duly electedcandidate, a decision which had to follow the decision that theelection of the appellant was invalid and also the finding thatDRespondent 2, as Ghatwal, was not a properly nominatedcandidate. We are therefore of opinion that so long as the order inthe appellant’s appeal No. 7 confirming the order setting aside hiselection on the ground that he was a holder of an office of profitunder the Bihar Government and therefore could not have been aEproperly nominated candidate stands, he cannot question thefinding about his holding an office of profit, in the presentappeal, which is founded on the contention that that findingis incorrect.”

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26. The said judgment has no applicability to the facts of the presentcase as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has notattained finality and the same are still subject matter of appeal beforethe First Appellate Court wherein, the findings recorded by the trial courtcan be set aside while maintaining ultimate decree of dismissal of theGsuit. In Badri Narayan Singh, the decision in an appeal became final,holding the appellant to be not duly elected candidate. The Appeal No. 8of 1958 was in respect of declaration that the respondent shall be deemedto be elected candidate. Therefore, in the absence of finality of judgments,there cannot be any question of such finding binding in the third suit.

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27. The Narhari arises out of a suit for possession of 1/3 share ofland from the 2 sets of defendants. The suit was partly decreed. Thetrial court decreed the suit; however, two appeals were preferred bytwo sets of defendants. Both the appeals were allowed and the suit wasdismissed. The plaintiff filed one appeal after filing the consolidated courtfee for the whole suit and by impleading all the defendants as respondents.The argument raised was that the plaintiff has filed only one appeal,therefore, the findings recorded in the other appeal will operate resjudicata in the second appeal preferred by the plaintiff. The Court heldas under:

“5. …..The question of res judicata arises only when there aretwo suits. Even when there are two suits, it has been held that adecision given simultaneously cannot be a decision in the formersuit. When there is only one suit, the question of res judicata doesnot arise at all and in the present case, both the decrees are in thesame case and based on the same judgment, and the matter decidedconcerns the entire suit. As such, there is no question of theapplication of the principle of res judicata. The same judgmentcannot remain effective just because it was ap- pealed againstwith a different number or a copy of it was attached to a differentappeal. The two decrees in sub- stance are one. Besides, theHigh Court was wrong in not giving to the appellants the benefitof section 5 of the Limitation Act because there was conflict ofdecisions regarding this question not only in the High Court of theState but also among the different High Courts in India……”

28. Ganga Bai is the judgment arising out of the proceeding priorto amendment of Order XLI Rule 22 of the Code. The High Court heldthat the first appeal filed by defendant Nos. 2 and 3 was not maintainableeven though the suit was wholly dismissed against them. The Court heldthat right of appeal is a creature of statute and that it is not inherentright. It was held as under:

“17. These provisions show that under the Code of Civil Procedure,an appeal lies only as against a decree or as against an orderpassed under rules from which an appeal is expressly allowed byOrder 43 Rule 1. No appeal can lie against a mere finding for thesimple reason that the Code does not provide for any such appeal.It must follow that First Appeal No. 72 of 1959 filed by Defendants A

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A2 and 3 was not maintainable as it was directed against a merefinding recorded by the trial court.

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21. Thus, the appeal filed by Defendants 2 and 3 being directedagainst a mere finding given by the trial court was notBmaintainable…”

29. In Ramesh Chandra, the Court held that one of the tests toascertain if a finding operates as res judicata is that the party aggrievedcould challenge it by way of an appeal. The Court held as under:

C“3. One of the tests to ascertain if a finding operates as res judicatais if the party aggrieved could challenge it. Since the dismissal ofappeal or the appellate decree was not against defendants. 2 and3 they could not challenge it by way of appeal. Even assumingthat defendant 1 could challenge the finding that liability of rentwas of defendants 2 and 3 as they were in possession, he did notDfile any written statement in the trial court raising any disputebetween himself and defendants 2 and 3. There was thus nooccasion for the appellate court to make the observation whenthere was neither pleading nor evidence……”

30. In another judgment reported as S. Nazeer Ahmed, it hasEbeen held that the appellant without filing a memorandum of cross-objections in terms of Order XLI Rule 22 of the Code, could challengethe finding of the trial court. The respondent in an appeal is entitled tosupport the decree of the trial court even by challenging any of thefindings that might have been rendered by the trial court against himself.For supporting the decree passed by the trial court, it is not necessaryFfor a respondent in the appeal, to file a memorandum of cross- objectionschallenging a particular finding that is rendered by the trial court againsthim when the ultimate decree itself is in his favour. The court held asunder:

“7. The High Court, in our view, was clearly in error in holdingGthat the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could notchallenge the finding of the trial court that the suit was not barredby Order 2 Rule 2 of the Code. The respondent in an appeal isentitled to support the decree of the trial court even by challenging H

any of the findings that might have been rendered by the trialcourt against himself. For supporting the decree passed by thetrial court, it is not necessary for a respondent in the appeal, to filea memorandum of cross-objections challenging a particular findingthat is rendered by the trial court against him when the ultimatedecree itself is in his favour. A memorandum of cross-objectionsis needed only if the respondent claims any relief which had beennegatived to him by the trial court and in addition to what he hasalready been given by the decree under challenge. We havetherefore no hesitation in accepting the submission of the learnedcounsel for the appellant that the High Court was in error inproceeding on the basis that the appellant not having filed amemorandum of cross-objections, was not entitled to canvas thecorrectness of the finding on the bar of Order 2 Rule 2 renderedby the trial court.”

31. Mr. Dave vehemently argued that res judicata in terms ofSection 11 of the Code is not about a decree but to a finding in theformer suit. It is argued that the first suit and second suit are the formersuits in which the findings were written against the State, therefore,such findings will operate res judicata. The said argument proceeds onthe basis that the Court would mean the High Court and, therefore,finding in the first and second suit would bar the subsequent proceedingsarising out of the third suit in appeal. We find that such an argument isnot tenable. As mentioned above, that the decree of dismissal of thefirst and second suit has not attained finality which are under challengeby the plaintiffs and the defendants-State are entitled to dispute findingson Issue No. 1 even without filing cross objections or in terms of OrderXLI Rule 33 of the Code that the decree of dismissal of suit on thegrounds other than what weighed with the learned trial court. All theissues are open for consideration before the First Appellate Court.

32. Section 11 and Explanation I of the Code would be applicablein subsequent proceedings between the same parties or between theparties under whom they or any of them claimed under the same title.But the findings in the first and second suit will not operate as res judicataas such findings are subject matter of challenge in the appeals filed bythe plaintiffs in their respective suits. All the three suits have been decidedtogether and the three appeals pending against such judgment anddecrees. Therefore, it cannot be said that the first and the second suit A

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Aare the former suits as the decree passed therein has not attained finality.The findings recorded therein will not, therefore, operate as res judicataas the State is not obliged to challenge findings on Issue No.1 in the firstand second suit even after the amendment of Order XLI Rule 22 of theCode.

B33. This Court in Lonankutty has examined the applicability ofthe principles of Section 11 in a matter wherein two suits were filed.Civil Suit No. 666 of 1954 was filed by the appellant for an injunctionfrom taking water from Survey No. 673 and discharge the water backthrough Survey No. 673 and for a mandatory injunction directing themto demolish the bund and close the sluice gates. The respondents filedCCivil Suit No. 5 of 1957 for an injunction restraining the appellant fromtrespassing on the bund constructed by them and for preventing theappellant from interfering with their right to take water from Survey No.673 and to discharge the water back through that land. The second wassubsequent suit. The suit of the appellant was decreed. However, theDsuit of the respondents was dismissed but decreed to the extent of theright claimed regarding the agriculture use. The result of decrees passedin two suits was that the respondents could take water from the land ofthe appellant and discharge for agricultural purposes only and not forfishing. Both filed two appeals arising out of two suits. However, all theappeals were dismissed. No appeal came to be filed arising out of secondEsuit filed by the respondents. It is in these circumstances it was held thatthe suit filed by the respondents, though after the suits of the plaintiff,would be deemed to be former suits as the decree in the said suit hasattained finality. The Court held as under:

“19. Respondents did not file any further appeal against the decreeFpassed by the District Court in the appeals arising out of their suit.They filed a second appeal in the High Court, only as against thedecree passed by the District Court in AS No. 66 of 1958 whicharose out of the decree passed by the trial court in the appellant’ssuit. Thus, the decision of the District Court rendered in the appealGarising out of the respondents’ suit became final and conclusive.That decision, not having been appealed against, could not bereopened in the second appeal arising .out of the appellant’s suit…

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21. In its remanding judgment dated July 8, 1964, by which theplea of res judicata was repelled, the High Court relied principallyon the decision of this Court in Narhari v. Shankar [AIR 1953SC 419 : 1950 SCR 754;] . That decision is in our opiniondistinguishable because in that case only one suit was filed givingrise to 2 appeals. A filed a suit against B and C which was decreed.B and C preferred separate appeals which were allowed by acommon judgment, but the appellate court drew 2 separatedecrees. A preferred an appeal against one of the decrees onlyand after the period of limitation was over, he preferred an appealagainst the other decree on insufficient court fee. The High Courtheld that A should have filed 2 separate appeals and since one ofthe appeals was time barred, the appeal filed within time wasbarred by res judicata. This Court held that “there is no questionof the application of the principle of res judicata”, because “whenthere is only one suit, the question of res judicata does not arise atall”. This was put on the ground that “where there has been onetrial, one finding, and one decision, there need not be two appealseven though two decrees may have been drawn up”. In our case,there were 2 suits and since the appellate decree in one of thesuits had become final, the issues decided therein could not bereopened in the second appeal filed against the decree passed inan appeal arising out of another suit. This precisely is the groundon which Narhari case was distinguished by this Courtin Sheodan Singh v. Smt Daryao Kunwar [AIR 1966 SC 1332:(1966) 3 SCR 300]. It was held therein that where the trial courthas decided 2 suits having common issues on the merits and thereare two appeals therefrom the decision in one appeal will operateas res judicata in the other appeal.”

34. The reliance of Mr. Dave on the judgment in Ashok NagarWelfare Association is not relevant for the present case as questionexamined was the scope of interference in the Special Leave Petition.That was a case whether an ex parte decree granted in two suits by thetrial court was set aside in appeal. The Special Leave Petition wasdirected against such order. This Court has rightly not interfered withthe setting aside the ex parte judgment. Bhanu Kumar Jain is also acase delineating the remedies available to a defendant in the event of anex parte decree granted. The said judgment is not applicable to thefacts of the present case.

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A35. Another judgment referred to by Mr. Dave is Nirmala BalaGhose. In the said case, the decree against deity had attained finality intwo suits. It was held that it is not open to another defendant to challengethe decree insofar as it is against deities. The Court has held as under:

“23. In this appeal, the two deities are also impleaded as partyBrespondents. But the deities have not taken part in the proceedingbefore this Court, as they did not in the High Court. The decreeagainst the two deities has become final, no appeal having beenpreferred to the High Court by the deities. It is not open to Nirmalato challenge the decree insofar as it is against the deities, becauseshe does not represent the deities. The rights conferred by theCdeed Ext. 11 upon Nirmala are not affected by the decree of thetrial court. She is not seeking in this appeal to claim a mere exaltedright under the deed for herself, which may require re-examinationeven incidentally of the correctness of the decision of the trialcourt and the High Court insofar as it relates to the title of theDdeities. It was urged, however, that apart from the claim whichNirmala has made for herself, the Court has power and is indeedbound under Order 41 Rule 33 Code of Civil Procedure to pass adecree, if on a consideration of the relevant provisions of the deed,this Court comes to the conclusion that the deed operates as anabsolute dedication in favour of the two deities. Order 41 RuleE313, insofar as it is material, provides:

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“The appellate court shall have power to pass any decree andmake any order which ought to have been passed or made andto pass or make such further or other decree or order as thecase may require, and this power may be exercised by theCourt notwithstanding that the appeal is as to part only of thedecree and may be exercised in favour of all or any of therespondents or parties, although such respondents or partiesmay not have filed any appeal or objection:”

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The rule is undoubtedly expressed in terms which are wide, but ithas to be applied with discretion, and to cases where interferencein favour of the appellant necessitates interference also with adecree which has by acceptance or acquiescence become finalso as to enable the Court to adjust the rights of the parties. Wherein an appeal the Court reaches a conclusion which is inconsistent G

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with the opinion of the Court appealed from and in adjusting theright claimed by the appellant it is necessary to grant relief to aperson who has not appealed, the power conferred by Order 41Rule 33 may properly be invoked. The rule however does notconfer an unrestricted right to re-open decrees which have becomefinal merely because the appellate Court does not agree with theopinion of the Court appealed from.”

36. We find that the High Court has failed to draw the distinctionbetween the decree and a finding on an issue. It is the decree againstwhich an appeal lies in terms of Section 96 of the Code. Decree in termsof Section 2(2) of the Code means formal expression of an adjudicationconclusively determining the rights of the parties. The defendants-Statecould not file an appeal against a decree which was of a dismissal of asuit simpliciter. The findings on Issue No. 1 against the State could bechallenged by way of cross-objections in terms of amended provisionsof Order XLI Rule 22 of the Code but such filing of cross-objections isnot necessary to dispute the findings recorded on Issue No. 1 as thedefendants have a right to support the ultimate decree passed by thetrial court of dismissal of suit on grounds other than which weighed withthe learned trial court. Even in terms of Order XLI Rule 33 of the Code,the Appellate Court has the jurisdiction to pass any order which ought tohave been passed or made in proceedings before it.

37. As per facts on record, Original Suit Nos. 274 of 1983 and276 of 1983 have been dismissed. The plaintiffs are in appeal in both thesuits before the First Appellate Court. Therefore, such decree includingthe finding on Issue No. 1 has not attained finality as the Appellate Courtis seized of the entire controversy including the findings of fact on IssueNo. 1. The defendants have a right to dispute such findings by filingcross-objections under Order XLI Rule 22 of the Code as amended inthe year 1976 or even in the exercise of the powers conferred on theAppellate Court under Order XLI Rule 33 of the Code.

38. The decree is of dismissal of the suit, whereas, the reasonsfor passing such decree is judgment as defined in Section 2(9) of theCode. In terms of Section 11 read with Explanation I, the issue in aformer suit will operate as res judicata only if such issue is raised in asubsequent suit. Since, the issue of title has not attained finality, therefore,it is not a former suit to which there can be any application of Section 11.

AB

C

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E

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H

A39. In view of the above, we allow the present appeals, set asidethe order passed by the High Court in the first appeal filed by the State,as the findings on Issue Nos. 1 and 2 in the first and second suit do notoperate as res judicata. The pending applications, if any, shall standdisposed of.

B40. In view of the orders in the appeals, Contempt Petition (Civil)No. 204 of 2014 is disposed of.

C

Divya Pandey

Appeals allowed.

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E

F

G

H