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Lutfunnissa Vs. Jamaitunnissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All606
AppellantLutfunnissa
RespondentJamaitunnissa
Excerpt:
civil procedure code, section 540, 561, 584 - decree--judgment--appeal--objections by respondent to decree--res judicata--civil procedure code, section 13. - - if he fails to follow this course, the decree, though in general terms, will stand good as finally deciding the issues raised by the pleadings upon which the ultimate determination of the cause and the decree itself actually rested. more than these the decree cannot cover, and we are clearly of opinion that the findings in a judgment upon matters which subsequently turn out to be immaterial to the grounds upon which a suit is finally disposed of as to the plaintiff's right to any portion of the relief sought by him as declared by the decree, amount to no more than obiter dicta, and do not constitute a final decision of the kind.....w. comer petheram, c.j., straight and brodhurst, jj.1. the two questions submitted to us by this reference in substance come to this: can a defendant file objections under section 561 of the code to, or appeal under section 540 from, a decree, which upon the face of it dismisses the plaintiff's claim in general terms, and does not record any adverse finding or declaration in respect of such defendant? it seems to us that the decision of these points must turn upon the language of the two sections above mentioned, and with regard to the latter of them we adopt and approve the judgment of straight, j., in lachman singh v. mohan i.l.r. 2 all. 497 in which he differed from the majority of this court as then constituted. it may further be observed that the reasoning therein is applicable,.....
Judgment:

W. Comer Petheram, C.J., Straight and Brodhurst, JJ.

1. The two questions submitted to us by this reference in substance come to this: Can a defendant file objections under Section 561 of the Code to, or appeal under Section 540 from, a decree, which upon the face of it dismisses the plaintiff's claim in general terms, and does not record any adverse finding or declaration in respect of such defendant? It seems to us that the decision of these points must turn upon the language of the two sections above mentioned, and with regard to the latter of them we adopt and approve the judgment of Straight, J., in Lachman Singh v. Mohan I.L.R. 2 All. 497 in which he differed from the majority of this Court as then constituted. It may further be observed that the reasoning therein is applicable, mutatis mutandis, to Section 561, which confines the objections which may be taken by a respondent, to objections to the decree. We may add, as supporting the view we take, that there are two rulings of the Calcutta Court, one of a Division, the other of a Full Bench, to be found in the Indian Law Reports, 7, Calcutta Series, pp. 206 and 322, Shortly to summarise the opinion we hold, it is this: If a decree is,, upon the face of it, entirely in favour of a party to a suit, such decree being the thing which by law is made appealable and nothing else, that party has no right of appeal there from. It may be that in the judgment, of which such decree is the formal expression, findings have been recorded upon some issues against that party; but if this be so, and he desires to have formal effect given to them by the decree, so as to allow of his filing objections thereto under Section 561 of the Code, or of appealing there from under Section 540, he must take steps under Section 206 to have the decree properly brought into conformity with the judgment, so that there may be matter on the face of it to show that something has been decided against him. In other words, he must obtain insertion in the decree itself, which alone contains the final determination of the cause, and not the judgment, such portions of the Court's findings as he considers himself injuriously affected by, so as to place himself in the position which the statute recognizes as giving him a right to impeach the decree. If he fails to follow this course, the decree, though in general terms, will stand good as finally deciding the issues raised by the pleadings upon which the ultimate determination of the cause and the decree itself actually rested. More than these the decree cannot cover, and we are clearly of opinion that the findings in a judgment upon matters which subsequently turn out to be immaterial to the grounds upon which a suit is finally disposed of as to the plaintiff's right to any portion of the relief sought by him as declared by the decree, amount to no more than obiter dicta, and do not constitute a final decision of the kind contemplated by Section 13 of the Code. For, if in a second proceeding between the same parties, the question of res judicata is raised with regard to them, it is the former decree explained by the light of the pleadings, in the sense we have indicated as to what was then directly and substantially in issue in such first suit, which must be looked at in order to determine whether the plea in bar is a good or a bad one. In the case out of which this reference has arisen, the question as to the validity or otherwise of the so-called wakfnama was wholly immaterial, and the Judge in his judgment on the appeal has rightly so held.

2. The plaintiff claimed possession of the property by ejectment of the defendant, and the first Court held that the defendant was in possession and entitled to it in lieu of the dower-debt to her. Upon this finding alone, there was an end of the plaintiff's case, as the quality of the defendant's estate did not properly come into question, the moment it appeared she was at the time of the suit entitled to possession. We find that the decree before us is, on the face of it, entirely in favour of the defendant, and the proper presumption is that it has been correctly prepared in advertence to the judgment. The mode in which this presumption could have been rebutted and the decree set right is provided in Section 206 of the Code, and we do not think that any other mode than that directly created by statute for bringing the decree into conformity with the judgment exists, and that until it appears upon the face of the decree that something has been decreed adversely to the defendant, no right of appeal arises, because there is nothing in the decree itself for him to appeal against. Our reply to the two questions of this reference must therefore be in the negative.

Oldfield, J.

3. I have already expressed my opinion on the question raised by this reference in the case of Lachman Singh v. Mohan I.L.R. 2 All. 497. Section 540 gives a right of appeal from the decrees, or from any part of the decrees, of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts. By Section 206 the decree must agree with the judgment, and it must specify clearly the particulars of the claim, and the relief granted, or other determination of the suit. The judgment must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. The decree, therefore, to agree with the judgment and fulfil the requirements of Section 206, should contain the material points for determination arising out of the claim, and material for the decision thereon, and if any issue material for the decision of the suit has been decided, the determination of it should be contained in the decree; and if this has not been done, the defect is a good ground of appeal, notwithstanding that the decree, on its face, may be altogether in favour of the appellant. For instance, it might happen that a plaintiff's suit has been dismissed, but a material issue has been decided in his favour and against the defendant, the decree omitting mention of it, and merely containing a dismissal of the suit. Here I think the defect in the decree would afford a good ground for appeal. It has been said that the appellant's remedy in such a case is, under Section 206, to have the decree corrected or by review of judgment, and, when the decree has been amended, to institute an appeal; but it is possible that those sections would not afford relief, or that relief would be refused, and, if an appeal is denied him, he might be without any remedy at all.

4. Besides, the law expressly gives a right of appeal from decrees, and this right cannot be affected by the circumstances that the appellant might have had recourse to other remedies; and it seems to me a round-about and unsatisfactory mode of giving redress, to direct a party to get the decree put into proper form and then institute an appeal from it, when he might obtain redress direct by the institution of the appeal. I would reply to the references in the affirmative.

Mahmood, J.

5. I regret that in this case I am unable to concur in the conclusion at which the learned Chief Justice and the majority of the Court have arrived. I agree in the conclusion arrived at by my learned brother Oldfield, though upon grounds somewhat different from those which he has stated. The facts of the case are sufficiently set out in the order of reference, and I need not repeat them. The first question before us relates to appeals from decrees, and the second to objections to decrees under Section 561 of the Civil Procedure Code, and our answers to both questions must depend upon the same principle. My reason for saying this is, that both in Section 540, relating to first appeals, and in Section 561, relating to objections made by a respondent by way of cross-appeal, and in Section 584, relating to second appeals, the word 'decrees' is used, and whatever meaning we attach to the word in one of these sections, we must attach to it in all three. Reading the interpretation-clause of the Code, I think it impossible to hold that 'decree' means the same thing as 'judgment,' because two different definitions are given of the two words, and these definitions are so clear that it is impossible to confound them. Bearing this in mind, it is important, applying a canon of construction which is followed in England, to consider the phraseology of the corresponding sections in the old Civil Procedure Code. In that Code, the section relating to first appeals corresponding to Section 540 of the present Code was Section 332, in which the word 'decrees' was employed, but in Section 372 corresponding to Section 584 as to second appeals, the expression used was not 'decree,' but 'decision.' The same expression was also used in Section 348 of the old Code corresponding to Section 561. In the present Code, the word 'decree' is uniformly used. I will not commit myself to the opinion that the Legislature necessarily meant different things by the words 'decision' and 'decree,' but, if the change of phraseology implies any change in the law at all, it must be that appeals are now allowed from 'decrees' only. This view is supported by the circumstance that in Section 594 the term 'decree' is again defined for the purpose of appeals to Her Majesty in Council. The section says: 'In this chapter, unless there be something repugnant in the subject or context, the expression 'decree' includes also judgment and order.' This appears to me to show that the term 'decree' as used in other parts of the Code must Dot be interpreted in such a wide sense, and it follows that neither appeals nor objections under Section 561, by way of cross-appeals, can lie otherwise than from decrees.

6. The determination of the questions now before us seems to depend therefore on two considerations--first, whether the finding or part of decree in respect of which the present appeal has been presented, is such a finding as could operate as res judicata; and secondly, whether, if so, it does not follow that such finding or part of decree must be susceptible of appeal. I hold, following the dictum of Savigny quoted by West, J., in Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464 that the one question necessarily depends upon the other, and that 'everything that should have the authority of res judicata is, and ought to be, subject to appeal, and reciprocally an appeal is not admissible on any point not having the authority of res judicata.' Sav. Syst., Section 293. I understand this to be sound jurisprudence and indeed common sense, and I have no hesitation in saying that any system of procedure must be defective which is inconsistent with it. I proceed therefore to consider whether the finding of the Court of First Instance, that the wakfnama was null and void, is such as would be binding upon the parties so as to preclude the appellant from showing in any subsequent litigation that the deed was valid.

7. In order to decide this question, I wish first to refer to the cases which were cited during the argument, and in the first place to the case of Man Singh v. Narayan Das I.L.R. 1 All. 480 in which a Court of competent jurisdiction, having tried and determined an issue arising in a suit on which the suit might have been disposed of, proceeded to try and determine another issue which also arose out of the pleadings, but the determination of which in that suit was not required for its disposal. It was held that such Court was not bound under the circumstances to refrain from trying and determining such last-mentioned issue, and that the trial and determination of it could not be treated as a nullity, and the issue could not again be tried and determined in another suit. Another case supporting Mr. Strachey's contention is that of Mohun Lal v. Ram Dial I.L.R. 2 All. 843 which was decided by a Full Bench of this Court, and in which it was held that an issue which had been directly and substantially raised between the parties, and had been determined, could not be re-opened, whatever the formal decree might show. There are several older cases in point, but I need only refer to Ranee Sengar v. Ranee Rugsel N.W.P. S.D.A. Rep. 1853 p. 112 and Ram Das v. Bhyropershad N.W.P. S.D.A. Rep. 1854 p. 388 in which it was held that where a usufructuary mortgagor sued the usufructuary mortgagee for recovery of possession of the mortgaged property, on the allegation that the mortgage had been liquidated by the usufruct, a finding that a certain sum still remained due, and which resulted in the dismissal of the suit, would be binding upon both parties. I should here mention a case on the other side decided by the Calcutta Court in 1862--the case of Brijololl Upadhya v. Motee Soonderee W.R. Sp. 33 in which it was laid down that in a suit by a mortgagor against a mortgagee to recover possession of property mortgaged under a zur-i-peshgee lease, the only question at issue being whether all the debts had been paid or whether the plaintiff could re-enter, the correctness of the account might be questioned by the defendant in any future suit. I only refer to this case incidentally, because I shall show further on why I am unable to accept the rule sanctioned by it. The latest case on the subject is Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319 in which the learned Judges of the Calcutta Court, after referring to certain rulings by the Privy Council, held that a finding of this description would amount to res judicata in subsequent litigation between the parties. The rulings referred to in that case make it clear to my mind that this decision would meet with the approval of their Lordships of the Privy Council, and I have therefore no doubt that, as the authorities stand, the finding of the Court of First Instance in the present case regarding the wakfnama is one which would operate as res judicata.

8. I wish, however, to show that the terms of the statute justify this conclusion, because some of the rulings to which I have referred are older than the existing Civil Procedure Code. Section 13 of the Code which relates to res judicata, deals with two matters first, the trial of suits, and secondly, the trial of issues. Under Act VIII of 1859, the terms of the Act limited the prohibition of further trials to suits which had been previously tried and determined. Section 2 ran thus: 'The Civil Court shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they claim.' In that section the principle of res judicata was embodied only to a limited extent; but, in interpreting the section, the Privy Council holding that, apart from legislative enactment, the principle of res judicata was an essential part of the law of procedure in every civilized country, applied that principle to the trial of issues as well as to the trial of suits, Section 13 of the present Code is founded on a long course of judicial decisions, and especially on the dicta of the Privy Council, and has formulated in express terms the rule, which previously was only expressed in part by legislative enactment, that the principle of res judicata applies both to the trial of suits and to the trial of issues. The distinction between the two things appears to me to be clear. A suit ends in a dismissal or a decree, in whole or in part. An issue ends in a finding; and the rule contained in Section 13 goes the length of saying that not only is a suit which has once been tried and determined not again maintainable, but an issue which has once been directly and substantially raised and decided, shall not be litigated a second time. I draw this distinction without expressing any view as to what I shall presently consider, namely, that a matter directly and substantially in issue must necessarily affect the decree in the suit in which such an issue has arisen. Now, Explanation I provides that 'the matter above referred to must in the former suit have been alleged by one party, and either denied or admitted, expressly or impliedly, by the other.' In the present case the plaintiff distinctly alleged that the wakfnama was invalid. The defendant has distinctly denied it. So there can be no doubt, with reference to Explanation I that this was a matter directly and substantially in issue between them. In the next place, Explanation II provides that 'any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.' In reference to the word 'ought' I think that, the suit being for ejectment, the defendant was bound not only to put forward her defence that she was in possession of the property in virtue of her dower-debt, but also the other defence, based upon a higher title, namely, that she had received the property under a deed of gift.

9. I have therefore no doubt that the validity of the deed was a 'matter directly and substantially in issue,' and that the result of the finding upon that issue would have the effect of res judicata in subsequent proceedings between the same parties. Upon this point I desire to refer to the observations of West, J., in Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464 where that learned Judge, just before citing the passage from Savigny, to which I have already referred, remarked that 'from a judgment against a plaintiff no adjudication in his favour can properly be derived as res judicata. It is not and cannot be an essential element of the jural relation on which an adverse decree rests, and no appeal lies against a merely incidental decision by one who is not in any way prejudiced by the concluding decision to which the partial ones are but subsidiary.' Now West, J., is a Judge with whom I never differ except with great diffidence, but I am obliged to say that with his judgment in that case I can only partly agree. I entirely go with him in his view that whatever has the authority of res judicata must be subject to appeal; but I cannot agree that in the case with which he was dealing there was no res judicata as to the plaintiff's ownership of the lands. I now pass to the case of Niamat Khan v. Phadu Buldia I.L.R. 6 Cal. 319. I have carefully read the judgments of the learned Judges who decided that case, and I confess I am unable to reconcile them with the judgment of West, J., in Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464. What the learned Judges of the Calcutta Court held was that the finding contained in the judgment only does operate as res judicata, but that because the person who benefits by the decree in the suit does not take care that something should be entered in the decree which is distinctly adverse to him, he is debarred from appealing from such defective decree, and yet the finding stands conclusive against him. West, J., on the contrary, held that whatever had the force of res judicata was necessarily appealable. Numerous other rulings have been cited, and among them Pan Kooer v. Bhugwant Kooer N.W.P.H.C. Rep. 1874 p. 19. What was ruled in that case was not long afterwards distinguished from cases like the present by Ram Gholam v. Sheo Tahal I.L.R. 1 All. 266. In that case, the plaintiffs sued for the redemption of certain mortgaged property, and the defendants-mortgagees raised two defences to the suit; first, that the plaintiffs were not the heirs of the deceased mortgagor, and were therefore not entitled to redeem; and secondly, that, even if they had a locus standi, the mortgage-debt had not been satisfied. The Court of First Instance held that the plaintiffs were entitled to redeem, but dismissed the suit on the ground that the mortgage-debt had not been satisfied. It was held by this Court that the defendants were entitled to appeal, and that the case of Pan Kooer v. Bhugwant Kooer N.W.P.H.C. Rep. 1874 p. 19 was not applicable. Again in the case of Lachman Singh v. Mohan I.L.R. 2 All. 497 a defendant was allowed to appeal against a decree in the following terms: 'Ordered that the plaintiff's claim as it stands at present be dismissed.' In that case, it is true that my learned brother Straight dissented from the opinion of the majority, but the decision of the Full Bench was that, under the circumstances, an appeal would lie. Another case--referred to by West, J., in Anasuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464 is Balak Tewari v. Kausil Misr I.L.R. 4 All. 491 to which I was a party, and in which a decision was arrived at on a reasoning somewhat, though not altogether, inconsistent with my present view. In regard to that case, I will only say that it is not quite on all fours with the present, and that I concurred in the judgment of my learned brother Tybbell out of deference to the ruling of the Full Bench in Pan Kooer v. Bhugwant Kooer N.W.P.H.C. Rep. 1874 p. 19 and probably in ignorance of the ruling in Ram Gholam v. Sheo Tahal I.L.R. 1 All. 266 and in the later case of Lachman Singh I. L. R. 2 All. 497.

10. Having referred to these cases, I wish to illustrate how any other view of the rule of res judicata would materially defeat the policy of the law upon which the rule itself is based. The reason of the maxim Nemo debet bis vexari pro eadem causa seems to me to apply as much to the trial of issues as to the trial of suits, for in either case the harassment to litigants would be similar if matters could be re-agitated after having been once duly adjudicated upon. Such I understand to be the rule laid down in the celebrated case of the Duchess of Kingston, and to have been repeatedly applied by the Lords of the Privy Council to Indian cases, some of which were cited by the learned Judges of the Calcutta Court in the case of Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319 to which I have already referred, and, as I have already indicated, Section 13 of the Civil Procedure Code only reproduces the well known rule of law. I am aware that nothing which constitutes mere obiter dictum can bind the parties; but it seems to me to be equally certain that a finding which conclusively binds one party must necessarily bind the opposite party also, and that, but for this reciprocity, the rule of res judicata, far from attaining its object of putting an end to litigation, would only achieve the contrary result of increasing litigation. Now taking, exempli gratia, the cases of Ram Gholam v. Sheo Tahal I.L.R. 1 All. 266 and Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464 to both of which I have already referred, I confess I am unable to conceive what advantage could have been gained by allowing the issue as to the title of the plaintiffs to be re-agitated in any subsequent litigation; indeed they could not be re-agitated, according to the rule laid down by the Lords of the Privy Council in the case of Soorjomonee Dayee v. Suddanund Mohapatter 12 B.L.R. 304 : 'If both parties invoked the opinion of the Court upon this question, if it was raised by the pleadings and argued, their Lordships are unable to come to the conclusion that, merely because an issue was not framed, which, strictly construed, embraced the whole of it, therefore the judgment upon it was ultra vires.' Now, in either of the two cases which I have taken for the sake of illustration, the finding as to the substance of the mortgage would undoubtedly be binding upon the plaintiff, because it was on that ground that his suit was dismissed; nor can there be any doubt that that same finding would be binding upon the defendant. Indeed the finding itself would be unintelligible but for the finding in favour of the plaintiff's title which was made the subject of appeal in those two cases with opposite results--one Court holding that the appeal would lie and the other that it would not. To take the illustration further, I will suppose the case of a plaintiff-mortgagor suing for redemption on the ground that the usufruct of the mortgaged property had paid off the mortgage; the defendant resists the suit on the ground that Rs. 5,000 is still due on the mortgage; and the Court, having taken accounts, arrives at the conclusion that only Rs. 200 is still due, and on that ground dismisses the suit. The finding as to the balance of the account would no doubt be binding upon the plaintiff, whose suit has been dismissed upon that ground, and I confess I fail to see how it can bind the plaintiff and not the defendant; for, as I said before, the principle of reciprocity is an essential element of the rule of res judicata. The result of a contrary view would be that in a subsequent suit by the same plaintiff, in which he offered to redeem the mortgage on payment of the balance found due against him in the former suit, the defendant-mortgagee might again re-agitate the issue as to the accounts, and harass the plaintiff again, thus defeating the policy of the maxim upon which the ruling of res judicata itself is based. There might indeed be a series of redemption suits by such a mortgagor, and in each case he might be called upon to prove that which he had already proved before; and it might be that in each case upon the same accounts the Court arrived at a different conclusion as to the balance still due on the mortgage. I cannot conceive that the rule of res judicata contemplates any such results--interest reipublica ut sit finis litium. Applying these principles to the present case, I rspeat what I said before, that the adjudication as to the invalidity of the wakfnama would be binding upon the defendant as res judicata notwithstanding the fact that the suit against her was dismissed on the ground that she held possession in lieu of dower.

11. I now come to the direct question raised by this reference: Is the present case an appeal from a decree? I do not understand the word 'from' as used in Section 540, or Section 584, or the expression 'objection to the decree' in Section 561 of the Civil Procedure Code to refer only to matters existing upon the face of the decree, and not to those which should have existed but do not exist in the decree. In my opinion, if certain prayers are made by a plaintiff or certain defences set up by a defendant in a suit, and one only of such prayers is granted by the decree, and a defence furnishing a full answer to the suit, though adjudicated upon, is not in the decree, the party objecting to such omission is entitled to say that the decree is wrong, because he appeals 'from' the decree. The claim in the present case (though the plaint is not as scientific as it might be) is twofold; first, that a deed of gift set up by the defendant may be declared invalid; and secondly, that the plaintiff be awarded possession of the property in suit. The decree dismissed the suit, regarding it merely as a suit for possession. But the complaint of the defendant is that it should have dismissed it absolutely on the ground that the defendant was full owner, as the deed of gift was valid; in other words, that the suit should have been dismissed in toto on the ground that the plaintiff's right of inheritance did not apply to the property in suit, as it did not belong to the deceased at the time of his death. This not having been done by the decree, the defendant is aggrieved or injured by the omission in the decree which, though defective, and though on the face of it dismissing the plaintiff's suit, in effect decrees her claim so far as it related to the invalidity of the wakfnama, and could at best be taken to dismiss the suit in the form in which the suit was brought, as was the case in Lachman Singh v. Mohan I.L.R. 2 All. 497 where a right of appeal was allowed to the defendant. When the case went to the Lower Appellate Court, it might be viewed in two aspects. Section 561 of the Code gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the Court of First Instance on any of the grounds which that Court decided against him, and, in that case, no notice or memorandum of the kind required by the last paragraph of the section would be necessary. The second right is that of taking any objections to the decree which the respondent might have taken by way of appeal. If the Judge in this case had held that the defendant's possession was not in lieu of her dower-debt, but under the deed of gift, and had maintained the first Court's decree, then no doubt the plaintiff would have had a right of appeal, not only in respect of the finding of the first Court that the defendant's possession was in lieu of her dower, but also in respect of the Lower Appellate Court's finding, that it was in virtue of the deed of gift. I do not see why the right of appeal should be allowed to one party and not to the other in respect of the same matter, namely, the validity or invalidity of the wakfnama. I make this observation bearing fully in mind the distinction drawn by the Civil Procedure Code between 'judgment' and 'decree.' Issues are the result of the pleadings of the parties (Sections 146 and 147, Civil Procedure Code); evidence is taken on the issues; judgment constitutes the finding upon that evidence with reference to the issues; and decree is the up-shot or the result of those findings. It is of course possible that when more than one issue arises in a suit the answer to one issue may furnish a full basis for the disposal of the whole suit, either by decreeing it or dismissing it. In such a case, it is perfectly conceivable that if the Court went on to record findings upon other issues not essential to the justification of the decree, such findings might be mere obiter dicta, not having the force of res judicata. From such obiter dicta, as I said before, no appeal could lie. But in a case like the present, where the prayer of the plaintiff not only claimed possession but also sought the cancellation of the wakfnama, the pleading of the parties necessarily gave rise to two issues essential for the disposal of the suit--essential in the sense of rendering the dismissal of the whole suit impossible without the determination either of both issues in favour of the defendant or of the issues as to the wakfnama in her favour. What the Court of First Instance did in this case was to decide both issues--the main issue as to the defendant's title under the wakfnama against her, and the minor issue as to her possession in lieu of dower in her favour. There is no doubt in my mind that neither of the findings can be regarded as mere obiter dictum, but because both of these were directly and substantially in issue within the meaning of Section 13 of the Civil Procedure Code, and because both were adjudicated upon, they would operate as res judicata in any subsequent litigation-between the parties. Such being the case, the defendant, in my opinion, had the right of appeal to the Lower Appellate Court 'from the decree' within the meaning of Section 540 of the Civil Procedure Code, on the ground, that the evidence produced by her entitled her to a decree throwing out the plaintiff's claim in toto in such a manner as to leave no room for another suit in which possession might be claimed on payment of dower in lieu of which the Court of First Instance held the defendant to be in possession. If the intention of the appeal were to obtain an addition in the decree to the effect that the wakfnama was invalid, it is obvious that the appeal would be meaningless, because such addition would, if anything, place the defendant-appellant in a worse position than she was before under the decree of the first Court. The object of the appeal is quite the reverse. It undoubtedly aims at having an addition made in the decree to remove a defect, but the appellant's prayer is, that that addition should be to declare her title in the property to be absolute, and not merely in lieu of dower. Such a complaint can, according to my view, be made the subject of an appeal 'from the decree,' or of an 'objection to the decree,' within the meaning of Sections 540, 584 and 561 of the Civil Procedure Code respectively.

12. This leads me to the consideration of the argument that a full remedy was given to the defendant by Section 206 of the Code. In the first place, it appears to me to be very doubtful whether Section 206 entitles a defendant in a case such as this to have the decree so prepared as to make it more expressly adverse to him; and, in the next place, it cannot be forgotten that if the Court which passed the decree declined to amend it, such refusal could not be made the subject of appeal under Section 588 or any other part of the Code, and, in the case of Raghunath Das v. Raj Kumar Ante p. 276 my learned brother Oldfield, and I have differed even upon the question whether any order passed under Section 206 can be made the subject of revision.

13. The case has been ably argued by Mr. Strachey, and before concluding I wish to notice the excellent manner in which he met the objection that the object of the defendant's present appeal and other objections under Section 561 before the Lower Appellate Court might have been achieved by her by applying for review of judgment under Section 623 of the Civil Procedure Code. I accept his argument that the word 'decree' which occurs in that section would be an insuperable impediment in the appellant's way for such a remedy if the argument of the learned Counsel for the respondent is to be accepted, because the word 'decree' occurs in that section, and must be interpreted in the same sense as in Sections 540, 561 and 584 of the Civil Procedure Code.

14. Apart from this, however, I confess that I am unaware of any rule that if more than one remedy is provided by statute for any grievance or injury, either of such remedies, in the absence of express provisions to that effect, is a bar to the other. Even conceding that the defendant in this case ought to have sought her remedy under Section 206 or under Section 623, I cannot hold that her neglect to do so makes her incapable of obtaining the same result by the exercise of her right of appeal.

15. For these reasons, my answer to the two questions referred to the Full Bench is in the affirmative.


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