Varadaraja Iyengar, J.
1. This second appeal is by the 1st defendant' attaching decree-holder in a suit by a defeated claimant which was dismissed by the trial court but allowed by the lower appellate court.
2. The 1st defendant obtained decree in O. S. No. 484 of 1950 of the District Munsiff's Court, Cochin, against the 2nd defendant, for certain rent arrears. Pending that Suit he had levied attachment before judgment of a few articles of furniture consisting of an almyrah, table, chair etc. and valued at about Rs. 130/- as Belonging to his debtor the 2nd defendant. The plaintiff thereupon filed Ext. E petition dated 11-9-1950 setting up claim to the attached articles. The petition was enquired into after the suit was decreed and rejected by the Munsiff by his order Ext. D dated 1-8-1952, This suit was then filed by the plaintiff for declaration of his title to the articles in question and which have been itemised in the margin of the plaint. According to the plaintiff he was a sub-tenant under the 2nd defendant in respect of two of the rooms covered by the building leased by the 1st defendant to the 2nd defendant and the articles were seized from in side the rooms in his occupation in pursuance to attachment levied in collusion between the defendants 1 and 2. The 1st defendant contested the suit on the footing that the movables attached belonged exclusively to the 2nd defendant and were never in the possession of the plaintiff. The 2nd defendant was ex parte. The trial court dismissed the suit on basis of its finding that there was no proof that the plaintiff owned or at all was in exclusive possession of the articles' in question. In doing so it took into consideration the comparative financial capacity of the plaintiff and the 2nd defendant to purchase and also plaintiff's failure to produce along with his claim petition either Ext. A letter of sale dated 1109 as regards item 1 almyrah which was apparently the most valuable of the articles, or even Ext. C Kaippada book evidencing the plaintiff's sub-tenancy under the 2nd defendant. The Munsiff was greatly impressed by the admissions made by the plaintiff while he was being examined on commission in one of the rooms covered by the alleged sub-tenancy, that his sister who was married to the 2nd defendant was, along with her children, then residing with the plaintiff. The lower appellate court on the other hand, accepted the evidence of the plaintiff as P. W. 4 & his witnesses P.W.1 and P. W. 3, to hold that the plaint movables belonged to the plaintiff and were in his possession at the time of attachment and accordingly allowed the suit. Hence this second appeal by the 1st defendant as abovesaid.
3. Mr. V. Rama Shenoi, learned counsel appearing for the appellant 1st defendant, raised the question that the appeal taken by the plaintiff before the lower appellate court was ill-constituted for lack of the 2nd defendant on the respondent's array and was liable to be dismissed on that sole ground. The 2nd defendant had no doubt been made 2nd respondent when the appeal was filed but he was struck out on later date on the motion of the appellant-plaintiff himself, that it was unnecessary to retain him on the array since no relief was prayed for against him. Now it may be that the 2nd defendant judgment-debtor was an unnecessary party in the suit herein filed by the plaintiff, defeated claimant. See Suppan Asari v. Alima Bibi, AIR 1934 Mad 587 (A) and Mt. Marram Bibi v. Ram Das, AIR 1922 All 404 (B), differing from Ghasi Ram, v. Mongal Chand, ILR 28 All 41 (C). But the question is whether in the appeal taken by the plaintiff, the 2nd defendant, whose ownership of the articles attached had been upheld by the trial court as against the plaintiff and in favour of the 1st defendant attaching decree-holder, was not a necessary party. This depends on, whether the success of the appeal filed without the 2nd defendant will give rise to two inconsistent or contradictory decrees, As observed in Mulla's C. P. C. 12th edition p. 947:
'The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is clear that a court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to such a result there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties who are before it'.
Thus in Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191 (D), the trial court had either intentionally or through oversight omitted to grant interest pendente lite. The plaintiff in appeal from the decree praying for grant of the interest, failed to bring the legal representatives of a deceased respondent in time. The court held that the appeal abated as a whole for, if the appeal was allowed there' would be two inconsistent decrees on the basis of the same handnote. Dealing with the contention that as the liability of the defendants was joint and several it was open to the plaintiff to proceed against the remaining respondents. Mohammad Noor, J. observed at page 192:
'That is so, so far as a suit is concerned; but different considerations arise in appeal. There may be cases in which a suit might not have abated but an appeal will abate'.
4. There can be no doubt in this case that the judgment of the lower appellate court allowing the appeal before it, has given rise to two contradictory decrees, in one and the same suit as regards the title of the 2nd defendant to the movables attached, one, that of the trial court upholding it and two that of the appellate court negativing it. The plaintiff would not have suffered if he had not impleaded the second defendant in the first instance. But having done so and failed in the trial court, it was impossible to carry on the appeal against the 1st defendant without the 2nd defendant also on the respondent's array. The consequence is, that the appeal filed in the lower appellate court by the plaintiff was unsustainable and this appeal will have to be allowed on this sole ground.
5. It is unnecessary in the light of the above conclusion to deal on the merits with the question of attachability of the articles, also argued on behalf of the special appellant. But having heard learned counsel and considered the matters, though in the absence of the respondent, I may say that I prefer the finding of the trial court on the matter to that of the learned Judge, particularly as the former had occasion to see the witnesses actually testifying. The plaintiff's case that the attachment had been levied in collusion between his brother-in-law the 2nd defendant and the 1st defendant creditor, is totally unbelievable in the circumstances and in my opinion, must be taken to give away the whole show.
6. In the result the second appeal is allowed and the decree of the trial court dismissing the suit with costs, is restored. The plaintiff will pay the 1st defendant his costs in this and the lower appellate court as well.