1. The defendant is the appellant. The respondent filed Suits Nos. 466 of 1909 and 276 of 1910 against, the appellant to enforce acceptance of pattas for faslis 1318 and 1319. They were dismissed by the Sub-Collector on the 19th December 1910 on the ground of want of jurisdiction but they were remand ed for disposal by the District Court on the 28th November 1911.
2. The Sub-Collector on remand passed a decree in both suits on the 26th March 1912. The suits were tried together and one judgment covered both the suits. Appeals were filed to the District Court on the 17th January 1912.
3. While proceedings were pending before the Sub-Collector the respondent (who is the landlord) filed S.S. No. 412 of 1911 to enforce acceptance of the patta tendered for fasli 1320. The Sub-Collector on the 23rd May 1912 passed a decree in favour of the plaintiff on the ground that the decision in S.S. No. 276 of 1910 passed on the 26th March 1912 rendered the contentions raised in the suit res judicata. No appeal was filed against the decree in S.S. No. 412 of 1912.
4. The appeals filed against the decrees of the Sub-Collector in Suits Nos. 466 of 1909 and 276 of 1910 came on for disposal before the District Judge on the 7th December 1912 and he dismissed them on the ground that the decision of the Sub-Collector in S.S. No 412 of 1911 (against which no appeal had been filed) rendered the question raised by the appellant res judicata. The present second appeal is against this decision.
5. When S.S. No. 412 of 1912 was decided, the time allowed by the Limitation Act for preferring appeals against the decision in Suits Nos. 466 of 1909 and 276 of 1910 had not run and it is not disputed that the appeals to the District Judge were filed in time. The only question for determination is whether the decision of another suit between the same, parties not on the merits but on the ground that the decisions subsequently appealed against rendered the question res judicata would bar the appeals from the prior decisions unless the later decision was also appealed against. There is a conflict between the views taken by Holloway, J. in Suryanarayanarazu v. Chellamkuri Chellamma (1870) 5 M.H.C.R. 176 and that taken by the Full Bench of the Allahabad High Court in Balkishan v. Kishan Lal I.L.R. (1888) A. 148; but while the dictum, of Holloway, J. was only obiter the point arose directly for determination in the later case.
6. There can be little doubt that an appeal is only a continuation of the original proceedings, the decree passed by the Appellate Court being the decree in the suit. Gobinda Chancier Roy v. Guru Churn Kurmokar I.L.R. (1887) C. 94, Dinonath Ghose v. Shama Bibi I.L.R. (1900) C. 23, Settappa Gounden v. Muthia Gounden I.L.R. (1907) M. 268, Chinnakaruppan Chetti v. Meyyappa Chetti (1915) M.W.N. 844, Krishnamachariar v. Mangammal I.L.R. 26 M. 91 ; and that on the filing of an appeal the judgment ceases to be res judicata and becomes sub-judice, Nilvaru v. Nilvaru I.L.R. (1881) B, 110. If the appeals had been filed when S.S. 412 of 1911 came up for trial, the Sub-Collector could not have treated his judgment in the suit as having finally decided the matters in issue between the parties so as to render the provision of Section 11 of the Civil Procedure Code applicable.
7. In Suryanarayanarazu v. Chellamkuri Chellamma (1870) 5 M.H.C.R. 176, Mr. Justice Holloway referred to the view taken by the Lower Court that a former judgment would not be conclusive when an appeal is pending and observed as follows: - 'In the Lower Court it seems to have been taken for granted that the former judgment could not be conclusive because an appeal was pending. This is not in accordance with English Law as the judgment on the rejoinder in Doe v. Wright (1839) 10 A. & E. 763 S.C. 113 E.R. 289 shows, It would, however, be perfectly sound doctrine in the view of other jurists (Unger Ost. Priv. Recht. II 603. Sav. Syst. VI 297. Seq. Waihter II 549). As an Englishman I should be sorry to invite a comparison between the reasons given by these great jurists for their and those embodied in the English cases for the contrary doctrine.' These observations were obiter as the former judgment against which the appeal was pending had become final when the judgment of the High Court was pronounced and according to Mr. Justice Holloway 'the only point to be determined is whether it is conclusive in the present litigation'. with reference to the identity of the subject as well as of the object between the two suits. It also appears from the language of Holloway, J'. that he thought that the continental jurists were right but that he felt himself bound by the English authorities. The view that a judgment will operate as res judicata even when an appeal has been filed is nob supported by any subsequent decisions.
8. In Doe v. Wright (1889) 10 A. & E. 763 S.C. 113 E.R. 289, the suit was on trespass and the question was whether the verdict in an action before the King's Bench in a previous action in respect of which a writ of error was allowed in Chancery would operate as an estoppel in the subsequent suit in the King's Bench. Lord Denman in holding for the plaintiff observed as follows: - 'The replications being good by way of estoppel, the remaining question is, whether the rejoinders avail to destroy their effect; and these allege the pendency of a writ or error on the original judgment in the House of Lords, and we are clearly of opinion against the defendant on this point. The authority cited by Mr. Cresswell from the year book 18 Edward 4 f 6 b pi 33 is very direct and satisfactory; and to this and other cases cited at the Bar may be added those of Taswell v. Stone (1769) 4 Burr. 2454 S.C. 98 E.R. 287 and Benwell v. Black (1790) 3 T.R. 643, because they illustrate the distinction taken between the mere maintenance of the action on a judgment pending a writ of error to reverse it, and the proceedings to execution upon a judgment recovered in such second action; in the former case the Court being clear that there was no reason to set aside the judgment but thinking it highly proper to stay any proceeding to execution upon it.'
9. In Burnaby v. Robert Earle (1874) L.R. 9 Q.B. 490, it was pointed out that at common law the suing out of a writ of error was a supercede as of execution on the judgment but did not affect the judgment in any other way and that it was consequently held in Snook v. Mattock (1836) 5 A. & E. 239 and Doe v. Wright (1839) 10 A. & E. 763, that the pendency of proceedings in error was no answer to an action on the judgment. It was also pointed out that by virtue of Section 38 of the Common Law Procedure Act of 1854 notice of the appeal does not stay execution of the judgment or affect the judgment in any way unless bail is given within the time limited.
10. The law in America is thus summarised by Black in his treatise on the Law cf Judgments Vol. II p. 510: 'In many of the States it is held that the pendency of an appeal suspends the operation of the judgment in respect of all its usual effects and hence the judgment not becoming final while the appeal remains undetermined it cannot be pleaded in Bar in the interval or used in evidence as an estoppel'.... 'But in several other States the rule is that although an appeal suspends the operation of the judgment for purposes of execution still so long as it remains un-reversed, its collusiveness is not affected by the appeal and in the meantime it may be pleaded or produced in evidence as if final.' The view he is inclined to take is that the mere fact that a judgment is liable to be appealed from cannot strip it of its conclusive character and that it remains in force as final unless actually suspended by an appeal and will in the meantime operate as res judicata.
11. We do not think that English and American authorities proceeding as they do upon technical rules of practice and procedure relating to appeals throw much light on the determination of questions arising under Section 11 of the Civil Procedure Code. There seems to be considerable difference between a bill for review or of error and an appeal (Hukumchand on res judicata page 701). As pointed in Settappa Gounden v. Muthia Gounden I.L.R. (1907) M. 268, the functions of the Appellate Court are not the same in England and America as in India and consequently great care has to be exercised before decisions based on practice and procedure of a highly technical character are followed in considering questions arising under the Civil Procedure Code. There is nothing in the Code to suggest that stay of execution has anything to do with finality of a judgment under appeal.
12. A Full Bench of the Allahabad High Court in Bal Kishen v. Kishen Lal I.L.R. (1888) A. 148, held that a judgment liable to appeal or actually under appeal cannot operate as res judicata during the interval preceding the appeal or the interval preceding the decision of the appeal. Mr. Justice Mahmood after referring to the view of Pothier to the effect that judgments liable to appeal stand for the purpose of res judicata on the same footing as provisional judgments was of opinion that explanation IV of Section 13 of the Civil Procedure Code of 1882 was not inconsistent with the view of Pothier and other continental jurists that judgments liable to appeal are only provisional and not final adjudications. The Chief Justice (Sir John Edge) and Justice Straight concurred in the judgment pronounced by Mr. Justice Mahmood.
13. Explanation IV to Section 13 of the Civil Procedure Code of 1882 which enacted that a decision liable to appeal may be final within the meaning of the Section until the appeal is made has been omitted in the present Code (of 1908) and the omission (which was in all probability made in view of the decision in II A. I48) removes any doubts or difficulties in dealing with the question and it is not necessary to speculate on the class of cases to which this explanation can be applied if a judgment liable to appeal is only held to be provisional and not operative as res iudicata.
14. In dealing with Section 52 of the Transfer of Property Act it has been held that a person who purchases property between the date of the disposal of the suit and the filing of the appeal would be bound by the rule of lis pendens, Gobind Chunder Roy v. Guru Churn Kurmokar I.L.R. (1887) C. 94, Dinonath Ghose v. Sliama Bibi I.L.R. (1900) Ck. 23, Sukhdeo Prasad v. Jamna I.L.R. (1900) A. 60, Settappa Gounden v. Muthia Gounden I.L.R. (1907) M. 268. If the appeal is only a continuation of the original proceedings and the suit is, for the purpose of Section 52 of the Transfer of Property Act, regarded as pending between the date of the decree and that of the filing of an appeal, it is difficult to see why the same rule should net apply when dealing with Section 11 of the Civil Procedure Code. The principle has been extended by Sadasiva Aiyar and Spencer, JJ. to the interval elapsing between the disposal of a claim and the filing of a regular suit under Order 21 Rule. 53 of the Civil Procedure Code (the Limitation Act allowing a period of one year) Krishnappa Chetti v. Abdul Kadir Sahib (1913) 26 M.L.J. 449.
15. In Panchanada Velan v. Vaithinatha Sastrial I.L.R. 29 M. 333 : 16 M.L.J. 63, a Pull Bench of this Court held that when cross suits are tried together and an appeal is preferred against only one of the decrees, the judgment in the suit not appealed against did not render the questions at issue res judicata. Their Lordships observe as follows: - 'It would lead to startling results if we were to hold that an Appellate Tribunal is precluded from dealing with a question which comes before it on appeal because an inferior court upon the same facts but in a case other than the case under appeal had given a decision which had not been appealed against at the same time as the decision in the case under appeal.' In Ramaswami, Chetty v. Karuppan Chetty (1915) 29 M.L.J. 551, Chief Justice and Mr. Justice Srinivasa Aiyangar held that, where judgments were delivered in respect of two suits, the one being based on and following the other, the fact that the party had not appealed against one of the decrees would not render the questions raised' in the decree appealed against res judicata. The same principle is applicable to cases when separate judgments are delivered in a number of connected suits. In the present case except the fact that the pattas tendered were for separate faslis the cause of action and the parties are the same, and the principle of the decisions above referred to may well be applied to the facts of the present case.
16. It has been argued by Mr. Krishnaswami Aiyar for the respondent that, so long as an appeal is not filed, the possibility of filing an appeal and of a reversal cannot affect the present validity of the judgment and that as appeals may be filed even after the period prescribed by the Limitation Act (should the delay be excused) there would be no finality to judgments. There is some force in this argument but, on the other hand, so long as a party is given a right of appeal it would lead to great hardship, if an erroneous judgment operates as res judicata during the interval allowed by law between the date of judgment and the filing of an appeal, especially as a party cannot in this. country file an appeal at once. As observed in Settappa Gounden v. Muthia Goundan I.L.R. (1907) M. 268. 'It is not open to a defeated suitor to file an appeal immediately, as he has to obtain copies of decree and judgment and he ought not to suffer for the delay imposed by law. There is no reason why this delay should prejudice him in this respect any more than the delay due to adjournments or stay of proceedings.'
17. It should also be remembered that a later decision not appealed against would be final irrespective of the decision of the Appellate Court and that therefore the finality of the decisions not appealed against is in no way disturbed by what the Appellate Court might do. It is argued that it is the duty of the party to file an appeal against the later decision if he think, that it is wrong and that ought not to operate as res judicata but there are cases where no appeal or second appeal is allowed by law. Difficulties will also arise if the party is not in a position to file an appeal against the later decision before the appeals filed against the earlier 'decisions come on for disposal. As regards appeals filed out of time and after independent rights between the parties have ripened, it is unlikely that courts would excuse the delay if during the interval other rights come into existence, which would render it inequitable that questions disposed of should be re-opened at the instance of a party who seeks the indulgence of the court, Esdaile v. Payne (1889) 40 Ch. D. 520 .
18. Following the decision in Bal Kishen v. Kishen Lal I.L.R. (1888) A. 148, we are of opinion that the Sub-Collector was wrong in holding that the decision passed by him in Suits Nos. 466 of 1909 and 276 of 1910 had the force of res judicata during the interval between the date of his decree and the time allowed between the date of his decree and the time allowed by law for filing the appeal.
19. The erroneous decision in Suit No. 412 of 1911 which was not on the merits but on a mistaken view of the law taken by the Sub-Collector would not therefore render the question raised in the appeals filed against the decrees in Suits Nos. 466 of 1909 and 276 of 1910 res judicata because the correctness of the decision in Suit No. 412 of 1911 would not be questioned in the appeals against these decrees. Mangalathammal v. Narayanasami Aiyar I.L.R. 30 M. 461 17 M.L.J. 250 is directly in point. Panchanada Velan v. Vaithinatha Sastrial I.L.R. (1905) M. 333 and Rami Chetti v. Karuppan Chetti (1915) 29 M.L.J. 551 are also authorities for holding that the District Judge was not debarred from deciding the appeals on their merits simply because no appeal was filed against the decree in the connected suit.
20. We reverse the decision of the District Judge and remand the appeals for disposal on the merits. The respondents will pay the appellant's costs in this Court and the costs in the Lower Court will abide and follow the result.