1. The 1st defendant is the appellant in this appeal. The appeal relates to findings on certain issues which were raised as between the 1st defendant on the one hand and 2nd and 3rd defendants on the other. The plaintiff sued for partition and the suit was dismissed. The Advocate General appearing for defendants 2 and 3 raises a preliminary objection that no appeal lies. He argues that the findings now complained against by the appellant are not necessarily implied in the decree nor are they embodied in the decree. They have no operative force. Ha argues that they will not be res judicata, and the appellant has no right to appeal against such findings when the decree is a decree dismissing the suit.
2. The learned Vakil for the appellant refers to the cases in Ranganathan Chetty v. Lachimiammal (1912) 14 M.L.T. 189, Ramakrishna Naidu v. Krishnaswami Naidu (1918) 36 L.L.J. 641 and Muthu Pillai v. Vedavyasa Chariar (1920) 12 L.W. 277. In the first of these cases the decision in the first suit on a point arising between the defendants was necessary for the dismissal of the plaintiff's suit. The matter was therefore res judicata in the later suit and the defendant (in the first suit) against whom the Court decided ought to have-appealed. This decision does not help the appellant except to this extent, viz., for an appeal to lie, it is not necessary that the finding should be actually embodied in the decree. In the present case, Issue 7 could well have been left undecided by the Sub-Judge, if he so chose, and he could have dismissed the plaintiff's suit. The decision on the genuineness of the will is not necessary for the dismissal of the plaintiff's claim. The fact that the Sub-Judge refused to expunge the issue has really no bearing on the matter. At the time he decided to retain it, it was impossible to say how the suit would have ended. We think the Sub-Judge disallowed the costs of the 1st defendant because he thought he instigated the suit and not because of the findings on the issues. The case in Ramakrishna Naidu v. Krishnaswami Naidu (1918) 36 M.L.J. 640 contains observations about the application of Run Bahadur Singh v. Lacho Koer (1884) 11 Cal. 301, which are opposed to the view of this High Court in other cases, e.g., Keru Nambiar v. Chathu Nambiar (1918) 25 M.L.T. 66. Whatever difficulties there may be in reconciling Ramakrishna Naidu v. Krishnaswami Naidu (1918) 14 M.L.T. 189 with the latter case, in which it was held that, where the decision is one based on a finding not necessary for the decision of the suit, the finding is not res judicata and in applying it to a case between plaintiff and defendant, those difficulties do not present themselves in this case, which is a case of co-defendants. It may be that the case in Run Bahadur Singh v. Lucho Koer (1884) 11 Cal. 301 and Krishna Behari Roy v Bunwari Lall Roy (1875) 1 Cal. 144 can be reconciled, not on the ground suggested by Sadasiva Aiyar, J. in Ramakrishna Naidu v. Krishnaswami Naidu (1918) 36 M.L.J. 641, viz., that Run Bahadur Singh v. Luch Koer (1884) 11 Cal. 301 should be confined to a case when the finding is contradictory to the final decree in the case, but on the ground that in Krishna Behari Roy v. Bunwari Lall Roy (1875) 1 Cal. 144 an appeal and a second appeal were preferred against the finding, argued without any objection and the appellant having chosen to insist on a decision, is bound by it. This view is supported by Midnapore Zamindari Co. Ltd. v. Kumar Naresh Narayan Roy (1921) 48 Cal. 460, where the Privy Council observe that the findings in the earlier suit would not be res judicata. In the present case the matter is stronger for the appellant as the finding is between co-defendants. In Muthu Pillai v. Vedavyasa Chariar (1920) 12 L.W. 277 Sadasiva Aiyar, J. held that the matter was res judicita because there was an appeal against the finding in the first case. It was not between co-defendants.
3. We are, therefore, of opinion that there is no decree against the 1st defendant--either express or implied--against which it is his duty to appeal and the appeal is, therefore, incompetent. On this ground we dismiss the appeal with casts (on the one-fourth scale, as no notice of objection was given by respondent, subject to the minimum rule).