1. The sole plea raised in this Second Appeal is that the matter in issue in the present suit has become res judicata, inasmuch as the issues in the suit now under appeal were also raised and determined in appellant's favour in a connected suit, and the decision in that suit has now become final. The suit before us was a suit for the balance of money due under a bond. That bond was executed by Musammat Suraj Kunwar and Sheo Prasad, both of whom are respondents to this appeal. The suit was instituted on the 6th of March 1896, against the obligors of the bond. On the 25th of the same month Musammat Suraj Kunwar instituted a suit in another district for the cancelment of the very same bond on the allegation that it had been satisfied. Both suits were eventually, under orders obtained from this Court, heard by one and the same Subordinate Judge, who, on the 13th of August 1896, decreed the claim brought by Kanahai Lal and dismissed the suit brought by Musammat Suraj Kunwar. Appeals were filed from the decrees in both the suits, both the defendants to the suit brought by Kanahai Lal appealing from the decree passed in that suit. In the appeal filed by the Musammat she was required by the Court, acting under Section 549 of the Code of Civil Procedure, to find security for the respondent's costs. She failed to do so, and on 18th November 1896, her appeal was rejected. The other appeal, namely, the one filed by the obligors of the bond went to hearing, with the result that the Judge found on the evidence that nothing was due under the bond. He accordingly set aside the decree of the Court of First Instance, decreed the appeal, and dismissed the suit. Before the Judge no allusion was made to, and no plea raised, based upon the order of the 18th November 1896, whereby the Musammat's appeal was rejected owing to her failure to find security. On the record, as it stands, there is no paper and no evidence by which the appellant can substantiate the plea which he has now raised in the appeal before us. His learned Counsel to remove this difficulty asked us to exercise our powers under Section 568 of the Code of Civil Procedure and to accept in evidence certain papers, namely, 1, plaint; 2, judgment and decree of the Court of First Instance in suit No. 46 of 1890; and also 3, the decree of the appellate Court. These are papers in the suit filed by the Musammat praying that the bond be cancelled. The other side objected to the reception of these papers, and we should have had no difficulty whatever in coming to the conclusion at which we have now arrived, but for a judgment of this Court which was laid before us with much earnestness by the learned Counsel for the appellant. That judgment is the Full Bench judgment in Muhammad Ismail v. Chatlar Singh (1881) I.L.R. 4 All. 69, a judgment which, we are told, has been followed by this Court in Tek Narain Rai v. Dondh Bahadur Rai Weekly Notes, 1898, p. 104. There are certain passages in some of the judgments of the Judges who composed the Full Bench which would seem at first sight to favour the contention raised by the learned Counsel, We do not question, and could not question, the decision of the Bench that the plea of res judicata may be raised for the first time in Second Appeal. This was the only point referred to the Full Bench. Any other passages in the judgments which may seem to go further and to furnish authority for the contention that that plea when so raised must be considered and determined either upon the record, as it stands, or after a remand for findings of fact must be deemed to be obiter dicta. Indeed the present case, if an example were required, would furnish a very good illustration of the danger of accepting any such rule. Here we have a finding of fact which is irreversible to the effect that the bond in suit has been fully discharged and nothing remains due under it. In the Court below when it was arriving at that finding nothing whatever was said as to, nor was the Court allowed an opportunity of considering, the fact that simply because one obligor had not been able to furnish security, the appeal in which the other appellant was indirectly, but vitally, interested had been rejected without any consideration of the merits. Even if we were to accept the contention of the appellant it would not advantage him.
2. We dismiss the appeal with costs.
3. I have also arrived at the same conclusion. In some of the judgments in the Full Bench which has been cited there are expressions which seem to imply that when a plea of res judicata is raised for the first time in Second Appeal, and when, in order to support that plea, findings of fact are necessary, this Court must remand the case for such findings. These expressions of opinion, as has been pointed out by my learned colleague, were unnecessary for the determination of the question referred for the consideration of the Full Bench. They seem to me to lose sight of the opening words of Section 568 of the Code of Civil Procedure, which enacts that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. If they are not entitled to produce additional evidence, I do not see how they can claim as of right to have a case remanded for additional evidence in order to support a plea (sic) for the first time in Second Appeal. But even if we did admit the additional evidence I do not see how it would advantage the appellant. The plaintiff's suit has been dismissed by the Lower Appellate Court upon a finding of fact, which cannot be disturbed in Second Appeal, namely, that the defendants respondents have discharged the bond upon which the plaintiff appellant came into Court. That finding is in favour of both the respondents. It is true that one of the respondents did bring a suit which entailed a finding upon the issue whether or not the bond had been discharged; that her suit was dismissed, and that her appeal from the decree dismissing the suit was, owing to her failure to find security of costs, rejected by the Lower Appellate Court. But I do not see how this can effect her co-obligor Sheo Prasad. He was, it is true, made a pro forma defendant to Musammat Suraj Kunwar's suit, but he was in no way interested in resisting that suit, and the fact that an appeal from the decree in that suit was rejected owing to the appellant's failure to give security cannot damnify him. We have then a judgment and decree which are valid so far as one of the co-obligors is concerned to the effect that the plaintiff's bond had been discharged. In the face of this valid decree it appears to me futile to allow this appeal to proceed.
4. For the above reasons I concur in the decree proposed by my brother KNOX.
5. The appeal is dismissed with costs.