754 SUPREME COURT REPORTS [ 1950]

\950 of authority is against the proposition that a widow

as

an unsecured creditor has any priority over the K•P

0

"

Chand

other unsecured creditors of her husband. In our

v.

K".d"' u""'"' opinion, the above mentioned two Allahabad decisions

B•~um .t Oth"'· do not lay down the law correctly on this point and

the rule has been correctly laid down in Ameer

Kha.l•lus.oman "· Ammal v. Sankaranarayanan Chetty (

1

). There is

nothing repugnant

or inequitable according to

the

principles of Muhammadan Law in the estate of a

deceased Muslim being

rateably distributed between

the unsecured creditors.

For the reasons given above we hold that the

objection raised by the widow had no substance in it

and the executing court should have directed the

pro­

perty to be sold and the sale proceeds distributed

rateably amongst

the decreeholders and the widow.

In the result we allow this appeal, set aside the

judg­

ments of the two courts below and direct the execut­

ing court to proceed with the execution in accordance

with the observations made herein.

In the

circum­

stances we will make no order as to costs of these

proceedings.

Appeal allowed.

19~0 f!N THE SUPREME COURT OF INDIA (HYDERABAD).]

Oct. JR.

NARHARI AND OTHERS

v.

SHANKAR AND OTHERS.

[MEHR CHAND MAHAJAN, R. S. NAIK and

KHALILUZZAMAN JJ.J

Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal

disposed of by same judgment-Separate decrees drawn "p-Appeal

from, orie decree only-Maintainability-Res judicata-Limitation

Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of

decisions .

..4. instituted a. suit for possession of two-thirrls share in an

estate against B and 0 who cloimed a one-third share each in it.

The suit was decreed by the trial court. B ant! 0 preferred

(I) I.L.R. 25 Mad. 658.

•'

•

"

S.C.R. SUPREME COURT REPORTS 755

separate appeals. These appeals were heard togethe.r and 1900

disposed of by the same judgment but sepa.rate decrees were

prepared; A preferred an appeal from one of these decrees in Narhari a.nd

time paying the full court fee anl later on, after the period of Othm

limitation had expired, preferred an appeal from the other decree v.

also. paying a court fee of Re. 1 only. The High Conrt held that Shankar and

A shoula have filed Repante appeals within the period of limita-Others.

1.i on and that, inasn_1uch as one of the appeals was time-barred,

che first appeal was barred by res judicata.

Held, that, as there was only one suit and the appeals hon

been disposed of by the same judgment, it was not necessary to

file two separate appeals and the fact that one of the appeals waH

time-barred did not affect the maintainability of the other appeal

and the question of res judica.ta did not a.t all arise in the case.

Held further, that in the circumstances the High Court,, .. ,

wrong in not giving to the appellant the benefit of s. 5 of the

Limitation Act as there was a conflict of rulings on the subject.

Mst. Lachmi v. Mst. Bhuli (A.I.R. 1927 Lob. 289) applied­

Appa v. Kach"i B<ryyan Kutty (A.J.R. 1932 lliad. 689) referred to.

APPEAL from a judgment of the High Court of

Hyderabad under article 374

(4) of Constitution:

Appeals

Nos. 22 and 23 of 1950.

Ghulam Ahmad Khan, for the appellants.

The respondents were not represented.

1950.

October 13. The judgment of the Court was

delivered by

NAIK J.-The suit out of which these appeals arise Na.;k J.

was one for possession of two-thirds of the land covered

by survey No. 214 and formesne profits. The plaintiffs

claim possession

on the ground that survey No. 214

was an inam land and according to the family custom,

belonged to them exclusively as members of the senior

line as against the defendants

who were of the junior

lines. There are two sets of defendants: Nos.

I to 4 belong

to one branch of the family and Nos. 5 to 8 to another.

Each set claim

that they are in possession of orie-third

of the land and maintain that they are entitled to

it

as their share of the family property. They deny the

custom of exclusive possession by

the senior branch,

alleged

by the plaintiffs. The trial court decreed the

suit. From this decree, two separate appeals

were·

taken by the two sets of the defendants to the Sadar -

&.\a\at, 䝜氈慲条Ⱐeach daimin~ one-third portion of

1960

Narhari tuid

Others

S h€lnkar a11d

OthtffS

Naik J.

756 SUPREME COURT REPORTS [1950]

the land and each paid the court fee to the extent of

their share. The first appellate court,

i.e., the

Sadar

Adalat, allowed both the appeals and dismissed the

plaintiffs' suit

by one judgment dated 30th Bahman

1338 F. and ordered a copy

of the judgment to be placed

on the file of the other connected appeal.

On the basis

of this judgment, two decrees were prepared by the

first appellate court. The plaintiffs preferred two

appeals to

the High

Court. The first was filed on 23rd

Aban 1345 F.

and with it was attached the decree

passed

in the appeal of defendants Nos. 1 to 4. Later,

on 17th Azur 1346 F. another appeal was filed and

with it the decree passed

in the appeal of defendants

Nos. 5 to 8 was attached. This latter appeal was

twenty-nine days beyond the period of limitation for

appeals.

It was filed on one-rupee stamp paper and a

note was made therein

that the full court fee had been

paid

in the appeal filed earlier, which has been

registered as Appeal

No. 331 of 1346 F. At the hearing

of the appeals, a preliminary objection was raised by

the defendants that as the other appeal. i.e., No. 332

of 1346 F. was filed beyond the period of limitation, it

cannot be maintained and that when the other appeal

is thus dismis,sed, the principle of res judicata would

apply to the first appeal,

i.e., No. 331 of 1346 and it

should also fail. The High

Court held that the plain­

tiffs should have filed two separate appeals within the

period of limitation

and as the other appeal was

admittedly time-barred,

the first appeal also failed by

the application of the principle of res judicata. The

High

Court dismissed both the appeals. Against this

judgment of

the High

Court two appeals were preferred

to

the Judicial

Committee of the State and they are

now before us under article 374(4) of the Constitution.

The High Court in its judgment relied on the

decision given in

jethmal v.

Ranglal(1). That was a

case

of a money suit where the plaintiff's claim was

partially decreed and from this judgment both

the

parties had appealed, the plaintiff to the extent of the

suit dismissed and the defendant to the extent of the

ll} ~~. D. L. R. 322.

•

,,

1

S.C.R. SUPREME COURT REPORTS 757

suit decreed. The first appellate court dismissed the

plaintiff's suit

in toto, thus allowing the defendant's

appeal and dismissing the plaintiff's appeal, and two

separate decrees were made. The plaintiff appealed

from one decree only, which was passed against him

and it was held that the principle of res judicata

applied.

Notwithstanding, this ruling of the Judicial

Com­

mittee of the State, the High Court, in several cases,

i.e., Nandlal

v. Mohiuddin Ali Khan('), Nizamuddin

v.

Chatur Bhuj('), Gayajee Pant v. Habibuddin('), and

Jagannath

v. Sonajee(') has held that when the suit is

one and two appeals arise out of the same suit, it is not

necessary to

file two separate appeals.

In the judgment of the High

Court, though reference

is given to some

of these decisions, it is merely men­

tioned

that the appellant relies on these decisions.

The learned Judges perhaps thought

that in the pre­

sence

of the Hyderabad Judicial

Committee decision

in ]ethmal v. Ranglal(')

they need not comment on

these decisions

at all. There is also a later decision of

the Judicial

Committee of the State in Bansilal v.

Mohanlal('), where the well known

and exhaustive

authority of the Lahore High

Court in Mst. Lachmi v.

M st. Bhuli (') was followed. In the Lahore case, there

were two cross suits about the same subject-matter,

filed simultaneously between the same parties, whereas

in the present case, there

was only one suit and one

judgment was given

by the trial court and even in the

first appeal to the

Sadar Adalat, there was only one

judgment, in spite

of there being two appeals by the

two sets

of defendants.

The plaintiffs in their appeal to the High

Court have

impleaded all the defendants as respondents

and their

prayer covers both the appeals and they have paid

consolidated court-

fee for the whole suit. It is now

well settled

that where there has been one trial, one

finding,

and one decision, there need not be two appeals

even though two decrees may have been drawn up.

(1) 22 D.L.R,

400. (31 28 D.L.R. 1094. 15) 17 D.L.R. S22.

(2) 23 D.L.R. 457. 14) 29 D.L R 108. (61 33 D.L.R. 601.

(7) A.I.R, 1927 L•h. '89,

97

1950

Narhari and

Others

v.

Shankar and

Oth~rs.

NaikJ.

1900

Narhari and

Of hers

v.

Shankar and

Oth!ra.

Nafk J.

758 SUPREME COURT REPORTS [1950]

As has been observed

by Tek

Chand J. in his learned

judgment in

Mst. Lachmi v. Mst.

Bhuli(') mentioned

above,

the determining factor is not the decree but the

matter in controversy. As he puts it later in his judg­

ment,

the estoppel is not created by the decree but it

can only be created by the judgment. The question of

res judicata arises only when there are two suits. Even

when there are two suits, it has been held that a deci­

sion given simultaneously cannot be a decision in

the

former suit. When there is only one suit, the question

of

res judicata does not arise at all and in the present

case,

both the decrees are in the same case and based

on the same judgment, and

the matter decided concerns

the entire suit. As such, there is no question of the

application of the principle of res judicata. The same

judgment cannot remain effective

just because it was

appealed against with a different number

or a copy of

it was attached to a different appeal. The two decrees

in substance are one. Besides, the

High

Court was

wrong in not giving to the appellants the benefit of

section 5

of the Limitation Act because there was

con­

flict of decisions regarding this question not only in the

High Court of the State but also among the different

High Courts in India.

The learned counsel for the appellants cited in sup­

port of his arguments the decision given in Appa v.

Kachai Bayyan Kutti(

2

), which is on all fours with the

present case.

We are, therefore,

of the opinion that these appeals

should be allowed

and the case remanded to the High

Court for decision on the merits of the case. Costs of

these appeals will abide the result of

the case.

Appeals allowed.

(ll A.I.I\.

19'7 Loh. 289. (21 A.l.R. l 932 (ad. 689.