1. This is a, plaintiffs' appeal and the facts which have given rise to this appeal may be stated : The firm of Sansarchand Lachhman Das has two branches, one at Saharanpur and the other at Hoshiarpur. On 10th January 1927, Dina Nath sued the Saharanpur firm in the Calcutta High Court for recovery of a sum of Rs. 4,301. This suit was numbered as 72 of 1927. The record of the Calcutta case was before the Court below but in spite of attempts made by parties the record could not come to this Court. The plaintiff however has filed the plaint of the suit and a perusal of the same shows that Dina Nath's claim was formulated in the following way: He alleged that between 2nd May 1926, and 11th October 1926, he supplied goods of the value of Rupees 10,502-11-0 to Sansarchand Lachhman Das and again between 14th August 1926, and 11th October 1926, the defendant took delivery of four wagons of soft molasses of the value of Rupees 3,824-13-9 although the defendant had agreed to take delivery of 23 wagons. The total price for the goods actually taken delivery of by Sansarchand Lachhmandas thus came to Rupees 14,327-8-9. To this was added a sum of Rs. 273-7-3 by way of interest. It was then alleged that because of the fact that the defendant did not take delivery of nineteen wagons of soft molasses although he had agreed to that effect, Dina Nath suffered a loss of Rs. 1,200. Thus the claim was for the recovery of Rs. 4,301. On 27th February 1927, this suit was shelved by the Calcutta High Court and the exact reasons for this procedure are not quite apparent. It appears however from certain statements made by counsel before me that Dina Nath, because of certain representations made by a relation of Sansarchand, thought that this matter as well as a certain other matter had been compromised and some payments under the compromise had been made. Dina Nath therefore on 15th January 1930, filed a suit in the Small Cause Court at Calcutta for Rs. 395-2-3 which according to him was the balance due to him under the compromise in respect of the two matters. Sansarchand Lachhmandas on 15th February 1930, denied that there was any compromise or that the compromise was effected by an authorised person and indeed they alleged that there was an overpayment made by them. Upon this Dina Nath withdrew his suit with liberty to institute a fresh suit on 10th April 1930.
2. On 5th March 1930 Sansarchand Lachhmandas filed suit No. 729 of 1930 in the Court of small causes at Saharanpur against Dina Nath for the recovery of a sum of Rs. 196-10-0. This claim was formulated in the following manner: It was alleged by them that they purchased goods of the value of Rs. 14,303-6-0 and not of Rs. 14.327-8-9 as alleged by Dina Nath and that they made payments to the extent of Rs. 14,500. This sum of Rs. 14,500 is composed of the Rupees 11,500 admitted by Dina Nath in his suit No. 72 of 1927 and Rs. 3,000 said to have been paid later on after the institution of the suit. Sansarchand's case therefore was that he made an over-payment of Rupees 196-10-0. This suit was decreed ex parte by the Small Cause Court Judge at Saharanpur on 12th June 1930, and the decree has been satisfied.
3. Dina Nath then took some proceedings in the Calcutta High Court for the revival of his suit No. 72 of 1927. What exactly these proceedings were is not quite known but it appears from the decree of the Calcutta High Court filed on the record of this suit that Dina Nath's claim was decreed for Rs. 1,001 with interest and costs. It is obvious how this sum was arrived at. Dina Nath's claim was originally for Rs. 4,301. Dina Nath admitted that subsequent to the institution of the suit a sum of Rupees 3,300 was paid by Sansarchand Lachhmandas and therefore his claim for Rs. 1,001 was still outstanding and his suit was decreed ex parte for this amount.
4. It would thus appear that so far as suit No. 72 of 1927 of the Calcutta High Court is concerned, the claim includes a claim for Rs. 1,200 as damages in respect of nineteen wagons and that credit was given for a sum not only of Rs. 3,000 but of another extra sum of Rs. 300. So far as Sansarchand Lachhmandas's suit at Saharanpur is concerned, it is also clear that it did not in any way embrace any question relating to nineteen wagons nor did it in any way admit the payment of Rs. 300 by himself; indeed his case as stated by his counsel was that this sum of Rs. 300 wag paid towards the liability of the Ho-shiarpur branch. It would therefore appear that in suit No. 72 of 1927 a claim for damages in connection with nineteen wagons was included and a payment of Rs. 300 was also given credit and neither of these two transactions formed part of suit No. 729 of 1930 in the Court of small causes at Saharanpur. It may also be mentioned that Sansarchand Lachhmandas was fully aware of the Calcutta suit as well as the revival proceedings that took place on or about 1st May 1930. In the same way Dina Nath was aware of the suit filed against him at Saharanpur. Dina Nath got his decree in suit No. 72 of 1927 transferred from the Calcutta High Court to the Saharanpur Court and prayed for the realisation of Rs. 1,570-9-0 which is composed of the principal sum of Rs. 1,001 and interest and costs.
5. Sansarchand Lachhmandas then brought the present suit No. 466 of 1931, in the Court of the City Munsif of Saharanpur praying that the defendant Dina Nath may be ordered not to take out execution of his decree in suit No. 72 of 1927 by the Calcutta High Court The trial Court held that this was in the nature of an objection to the execution taken out by Dina Nath and therefore the suit was converted into proceedings under Section 47, Civil P.C. It is said by parties that this procedure was a correct procedure. Courts below have come to the conclusion that there is no bar to the execution taken by Dina Nath and that the plaintiff Sansarchand Lachhmandas is not entitled to say that Dina Nath should be restrained from executing his decree.
6. The contention of Sansarchand Lachhmandas is that by reason of the decree which he obtained in suit No. 729 of 1930, Dina Nath's decree in suit No. 72 of 1927 has become ineffectual. It is contended that there are two conflicting decrees and therefore the last of such decrees should prevail. There is no doubt that the decree at Saharanpur in Sansarchand's suit was passed after the decree of the Calcutta High Court and the question which I have got to decide is whether the two decrees are conflicting or whether they relate to two different matters. It is not correct to say that the plea taken by Sansarchand is a plea of res judicata strictly speaking. His contention must be deemed to amount to this, ,that on the principles underlying the plea of res judicata which aims at avoiding multiplicity of litigation and at securing finality, if two conflicting decrees have been obtained by parties from two different Courts or even from the same Court then the last one should be the effective decree between the parties and the first decree should be regarded as dead. The basis of this salutary rule is that if a party who could raise the plea of res judicata does not raise the same when an opportunity is given to him he must be deemed to have waived it. The plea of res judicata is not one which affects the jurisdiction of a Court. It is a plea in bar and such a plea can be waived. When Sansarchand filed his suit in Saharanpur it is said that it was open to Dina Nath to plead that the suit was barred by res judicata because of the decree that Dina Nath had obtained in the Calcutta High Court. I have therefore got to decide whether Dina Nath could with success have advanced the plea of res judicata. In an earlier portion of my judgment I have taken some pains to describe at length the claim which was made by Dina Nath in the Calcutta suit and the claim that was made by Sansarchand before the Small Cause Court at Saharanpur, and I have come to the conclusion that the Calcutta suit comprised a claim for damages which was not in issue in the Saharanpur Court. The Calcutta suit, further, took into consideration a payment of Rs. 300 which was not dealt with in the Saharanpur suit and as such the cause of action and the issues in the Calcutta suit were different from the cause of action and the issues in the Saharanpur suit and it was not possible for Dina Nath to have pleaded before the Saharanpur Court that the decree of the Calcutta High Court was res judicata. In this view there are no two conflicting decisions and it is not possible for Sansarchand Lachhmandas to argue that the Calcutta decree is incapable of execution.
7. For the reasons given above, I think the view taken by the Courts below is correct and I dismiss this appeal with costs. The injunction that has been issued at the instance of the appellant will be discharged. Leave to file an appeal by way of Letters Pa-lent is allowed.