Abdur Rahman, J.
1. The lower appellate Court was not inclined to agree with the decision of the trial Court, but nonetheless, affirmed its judgment on a plea of res judicata which was taken before it for the first time. Ordinarily this is not permissible. But when the final finding on which the plea rests was given while the appeal was pending it was not only justified but, in my view, J bound to take notice of the final judgment arrived at between the parties and give effect to the same. It was very strongly 'urged on behalf of the appellant that the ploa of res judicata should be, since it was not taken for a great length of time while the suit was pending in the first Court, taken to have been waived. It is true that the petition under Section 4, (I.A. No. 526 of 1934) was decided on 17th August 1935 and the suit was. dismissed on 7th April 1936 but it must be remembered that an appeal had boon filed on behalf of the appellant from the decision of his petition in I.A. No. 526 of 1934, and the suit, O.S. No. 41 of 1932 was dismissed only on a preliminary point, viz., that it disclosed no cause of action. An appeal was preferred against this decree on h July 1936 and the decision by the District Judge in the appeal preferred against the order dismissing I.A. No. 526 of 1934 was not given until after three weeks of the filing of the appeal, A.S. No. 9 of 1937, from the decree passed in O.S. No. 41 of 1932. It would thus be seen that there is no merit in the objection as to waiver. The objection that the lower appellate Court was not justified in permitting additional evidence in the shape of the judgment to be produced during the pendency of the appeal has also no force. The Court was bound, as observed before, to take notice of events which had subsequently happened and justified in the circumstances to permit the judgments to be produced before it. In a similar case. Varadachariar J. had entertained a ploa of res judicata in revision, : (1936)70MLJ223 : AIR 1936 Mad. 190 : 161 I.C. 219 : 59 Mad 777 : : (1936)70MLJ223 Rangachariar v. Rangaswami Iyengar.
2. The question whether the decree passed in favour of defendant 2 was collusive was raised and decided by the Insolvency Court in pursuance of an application presented on behalf of the plaintiff-appellant in which he challenged the security bond executed by the insolvent before the date of insolvency in favour of defendant respondent 2. This was dismissed and the decree was said to have been validly passed in favour of defendant 2 in respect of the debts which were found to be genuinely due to him. This finding was affirmed on appeal, and became final long before an application was given on behalf of the respondent to the effect that the plea of res judicata might be considered. In view of that decision, the finding of the lower appellate Court would not be seriously challenged. It was urged in the end that at all events the case should have been sent back by the lower appellate Court. But in view of the clear decisions that had been arrived at between the parties both by the Insolvency Court and by the District Court on appeal, it was hardly necessary to adopt that procedure. For the above reasons the appeal fails and is dismissed with costs. Leave to appeal is refused.