REPORTABLE   IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO. 17486 OF 2017

STATE OF ANDHRA PRADESH & ORS.    

.....APPELLANT(S)

VERSUS    

B. RANGA REDDY (D) BY LRs & ORS. .....RESPONDENT(S)    

W I T H

CIVIL APPEAL NO. 17487 OF 2017    

A N D    

CONTEMPT PETITION (CIVIL) NO. 204 OF 2014

 J U D G M E N T   

 HEMANT GUPTA, J.    1) The challenge in the present appeals is to an order passed by the

High  Court  of  judicature  of  Andhra  Pradesh  at  Hyderabad  on

October 01, 2012 whereby an appeal filed by the appellants was

found to be hit by the principle of res judicata and was dismissed.    

2) The  brief  facts  leading  to  the  present  appeals  are  that  three

separate  suits  were  filed  against  the  defendants  including  the

State: first, Original Suit No. 274 of 1983 in respect of 6.08 guntas

of land comprising in Survey No. 9 of 2013 of Khairatabad Village;

second suit  bears Original  Suit  No. 276 of 1983 in respect of  3

guntas of land comprising in Survey No. 9 of 2013 of Khairatabad

Village; and third suit bears Original Suit No. 141 of 1984 which has

been filed in respect of land measuring 19.23 guntas in respect of

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land falling in Survey Nos. 49 and 50 in Rasoolpura Village. The

stand of the State in all the suits is that the land in all the three

suits  falls  in  Survey  No.  43  of  Village  Bholakpur,  which  is  a

Government  Shikkam  Talab  measuring  145  acres  35  guntas,

popularly known as Hussain Sagar Talab. All three suits were tried

together.  The evidence was recorded in Original Suit No. 274 of

1983.  The issues and the findings recorded by the learned trial

court on issues of title are as under:

“ORIGINAL SUIT NO. 274 OF 1983 – FIRST SUIT    Issues    1)  Whether the suit property is part of Sy. No. 9/13 of

Khairatabad  Village  as  claimed  by  the  plaintiff  or whether  it  is  a  part  of  Sy.  Nos.  49  and  50  of Rasoolpura Village as claimed by the defendants 1 to 4 or whether it is the part of Sy. No. 43 of Bholakpur Village as claimed by the Government?    Finding Para 40. The plaintiff miserably failed to establish that the  suit  property  forms  part  of  Sy.  No.  9/13  of Khairatabad Village. But the defendants 1 to 4 clearly established that it forms part of Sy. Nos. 49 and 50 of Rasoolpura. However, the Government also failed to established that the suit land forms part of Sy. No. 43 of Bholakpur Village.    

2) Whether the plaintiff is entitled for declaration of his title to the suit property and whether he is entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property?    

Finding Para 41.  The plaintiff miserably failed to establish his title and possession in the suit property and as such, he  is  not  entitled  for  the  relief  of  declaration  or permanent injunction or possession.

    3) To what relief?

  Finding  Para 44.  In the result, the suit is dismissed with costs.

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ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT    Issues    1) Whether the suit property is part of Sy. No. 9/13 of

Khairatabad  Village  as  claimed  by  the  plaintiff  or whether it is a part of Sy. No. 49 and 50 of Rasoolpura village  as  claimed  by  the  defendants  1  and  2  or whether  it  is  the  part  of  Sy.  No.  43  of  Bholakpur Village as claimed by the Government?    Finding Para 45.  Issue No. 1 in Original Suit No. 274 of 1983 and this issue are practically one and the same and as such the finding on issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also.    

2) Whether the plaintiff is entitled for declaration of his title to the suit property and Whether he is entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property?    Finding Para  46.   The  plaintiff  in  this  suit  also  failed  to establish his title and possession in the suit property and  as  such,  he  is  not  entitled  for  the  reliefs  of declaration  or  permanent  injunction  or  alternative relief of possession.

    3) To what relief?

  Finding  Para 49. In the result, the suit is dismissed with costs.

  ORIGINAL SUIT NO. 141 OF 1984 – THIRD SUIT    Issues    1) Whether the suit property is part of Sy. Nos. 49 and

50 of Rasoolpura Village as claimed by the plaintiffs or Whether  it  is  part  of  Sy.  No.  9/13  of  Khairatabad Village  as  claimed  by  the  defendants  1  and  2  or Whether it is part of Sy. No. 4J of Bholakpur Village as claimed by the Government?    Finding Para 50.  The finding on Issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also.    

2) Whether  the  plaintiff  are  entitled  for  declaration  of their title to the suit property and Whether they are entitled  for  the  consequential  relief  of  permanent injunction or in the alternative for possession of the suit property?

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  Finding Para 52.  The plaintiffs could establish their title in the suit  property  and as  such they are  entitled for  the reliefs  of  declaration  and  possession.  Though  they were  in  possession  of  the  property  originally,  the Special  Executive Magistrate took possession of  the property  after  the  initiation  of  Section  145  Cr.P.C. proceedings.  So  the  Government  is  bound  to surrender possession to the plaintiffs in this Suit.

3) To what relief?    Finding Para 56.  In the result, the suit is decreed with costs, as prayed for. The Government is erected to deliver possession of the suit property to the plaintiffs within 2 months. However, this finding shall not come in the way of the Urban Land Ceiling authorities to initiate proceedings to take possession of the excess land, if any,  from the plaintiffs  (in  Original  Suit  No.  141 of 1984). Similarly, the Government is also at liberty to acquire  any  portion  of  the  suit  land  for  public purposes by following the necessary procedure and by  paying  the  adequate  compensation  to  the plaintiffs."

    3) The  State  filed  appeal  arising  out  of  judgment  and  decree  in

Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an

objection was raised that the findings recorded on Issue No. 1 in

Original Suit Nos. 274 of 1983 and 276 of 1983 have to be treated

as decree and would operate as res judicata. The High Court while

hearing such objections in appeal framed the following two points

for consideration:

“1) Whether the findings of the lower Court on issue No. 1 in O.S. Nos. 274 and 276 of 1983 have to be treated as decree and whether they operate as res judicata  against  the  Government,  since  the Government have not filed any appeals challenging the said findings?    2) Whether the Government of Andhra Pradesh was not  required to file appeals  on the ground that  no enforceable decree was passed against it?”

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4) The  High  Court  held  that  decision  on  issues  or  any  matter  in

controversy shall  be deemed to be decree in view of reading of

Order XIV Rule 1 of the Code of Civil Procedure, 19081.  The High

Court noticed the fact that in the third suit, there was a specific

direction to deliver possession of the suit property to the plaintiff

within two months but there is  no specific direction against  the

Government in the first and the second suit but the fact remains

that specific finding is given in those cases that Government failed

to  establish  that  the  suit  land  forms  part  of  Survey  No.43  of

Bholakpur Village. Thus, there is clear declaration of right and title

of the parties. The High Court held as under:  

"In the present case, there is clear finding against the Government.  When there is  a  clear  finding that  the suit  land  does  not  form  part  of  Survey  No.  43  of Bholakpur  Village as  claimed by  the Government,  it was obligatory on the part of the Government to file cross-objections.  What  Government  can  do is  it  can support the findings of the lower court. The findings of the lower court  are  that the suit  land forms part  of Survey No. 49 and 50 of Rasoolpura Village. Obviously, the Government cannot support such finding, because its case is that the suit land forms part of Survey No. 43 of Bholakpur Village.     In  the  appeals  filed  by  the  plaintiffs,  the  main question that falls for consideration is whether the suit properties form part of Survey No. 9/13 of Khairatabad village or it forms part of Survey Nos. 49 and 50 of Rasoolpura village. The question whether the suit land forms part  of Survey No.  43 of  Bholakpur village as claimed  by  the  Government  does  not  fall  for consideration  in  the  appeals  in  CCCA 1  of  1999  or CCCA No. 9 of 1999 i.e., appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, without filing  cross-objections  the  Government  cannot challenge the findings of the trial court."   

5) Mr. Vaidyanathan, learned senior counsel for the State relied upon

1 for short, ‘Code'

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judgments of this Court in  Narhari & Ors.  v.  Shankar & Ors.2,

Ganga Bai  v.  Vijay Kumar & Ors.3, Banarsi  & Ors.  v.  Ram

Phal4, Hardevinder  Singh  v.  Paramjit  Singh  &  Ors.5, Sri

Gangai  Vinayagar  Temple  &  Anr.  v.  Meenakshi  Ammal  &

Ors.6, Chitivalasa  Jute  Mills  v. Jaypee  Rewa  Cement7,

Ramesh Chandra v. Shiv Charan Dass8 and S. Nazeer Ahmed

v. State Bank of Mysore & Ors.9 to contend that the defendants

in  the  first  and  the  second  suit  had  no  right  to  file  an  appeal

against the decree of dismissal of suits passed in such suits.  The

appeal would not lie against the findings recorded when the decree

is  only  of  dismissal  of  the  suits.  It  is  argued that  the  effect  of

amendment in Order XLI Rule 22 of the Code vide Central Act No.

104 of 1976 is only to enable an aggrieved person to file cross

objections but that does not take away the right of an aggrieved

person to support the decree of dismissal of the suit in appeal on

the grounds other than what weighed with the learned trial court in

dismissing the  suit.  It  is  contended that  appeal  lies  against  the

decree passed and not the judgment giving the reasons to pass a

decree. It is further contended that the State has a right to agitate

the findings on Issue No. 1 in terms of the provisions of Order XLI

Rule 33 of the Code as well,  therefore, the findings recorded on

2  AIR 1953 SC 419 3 (1974) 2 SCC 393 4 (2003) 9 SCC 606 5  (2013) 9 SCC 261 6  (2015) 3 SCC 624 7  (2004) 3 SCC 85 8  AIR 1991 SC 264 9  (2007) 11 SCC 75

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Issue No. 1 are not final so as to operate  res judicata against the

decree in the third suit which is the subject matter of challenge by

the State. It is contended that the State has filed cross objections

before hearing of  the appeal though after the order of  the High

Court, thus, the findings recorded on Issue No. 1 have not attained

finality which can operate as res judicata. It is contended that the

judgments referred to by the learned counsel for the respondents

are in the cases where the decree had attained finality. But none of

the  judgments  referred  to  by  the  learned  counsel  for  the

respondents pertains to a finding recorded in a civil suit which was

dismissed  and  is  subject  matter  of  challenge  in  appeal  by  the

plaintiff himself.   

6) On the other hand, Mr. Dushyant Dave, learned senior counsel for

the respondents argued that there is a categorical finding recorded

by the trial court that land does not fall in part of Survey No. 43 of

Bholakpur Village, as per the stand of the Appellants in all three

suits,  therefore,  it  was mandatory for  the defendants to impugn

such findings by way of an appeal in the first and second suit as

well.  Since the State has not filed any appeal against the findings

recorded in  the  first  and the  second suit,  the  findings  recorded

therein will operate as res judicata and the appeal arising out of the

third  suit  is  barred  by  res  judicata.  Learned  counsel  for  the

respondents  relied  upon  the  judgments  of  this  Court  in  Badri

Narayan Singh  v.  Kamdeo Prasad Singh & Anr.10, Sheodan

10  1962 (3) SCR 759 Page 7 of 33

Singh v. Daryao Kunwar (Smt.)11, Lonankutty v. Thomman &

Anr.12, Premier Tyres Limited v. Kerala State Road Transport

Corporation13, Harbans Singh & Ors.  v.  Sant Hari  Singh &

Ors.14,  Ashok  Nagar  Welfare  Association  &  Anr.  v. R.  K.

Sharma & Ors.15, Nirmala Bala Ghose v. Balai Chand Ghose16,

Bhanu Kumar Jain v. Archana Kumar and Another17.   

7) Mr. Dave submits that the judgments referred to by the learned

counsel  for the appellants are not applicable to the facts of  the

present case. He argued that  res judicata  applies not only to the

decree but it bars the Court to try any suit or issue in which the

matter has been directly and substantially in issue in former suit. It

is,  thus,  contended  that  principle  of  res  judicata  are  not  only

against the final judgment and decree but also in respect of any

finding recorded in the suit.  

8) Mr. Jai Savla, learned senior counsel, relied upon another judgment

of  this  Court  in  Govindammal  (D)  by  LRs  &  Ors.  v.

Vaidyanathan & Ors.18 to  contend that  plea of  res  judicata is

applicable even in respect of co-defendants.

9) Respondent  No.  8  in  the  written  submissions  relies  upon Sri

Gangai Vinayagar Temple to contend that the filing of a Single

Appeal would lead to entire dispute becoming  sub judice only if

suits  are  consolidated.  Since,  three  suits  in  question  were  not 11  1966 (3) SCR 300 12  (1976) 3 SCC 528 13  1993 Supp. (2) SCC 146 14  (2009) 2 SCC 526 15  (2002) 1 SCC 749 16  1965 (3) SCR 550 17  (2005) 1 SCC 787 18  (2018) 14 SCALE 198

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consolidated, therefore, non-filing of the appeal by the appellants

in first and second suit will operate as res judicata.    

10) Learned counsel for the appellants has produced a photocopy of

the decree in  the Original  Suit  No.  274 of  1983 which is  to the

effect “that the suit be and the same is hereby dismissed”.   

11) To appreciate  arguments  of  the  learned  counsel  for  the  parties,

certain statutory provisions from the Code need to be extracted

before the judgments referred to by the learned counsel  for the

parties are considered.   

“2(9) "judgment"  means  the  statement  given  by  the Judge on the grounds of a decree or order;    2(2) "decree"  means  the  formal  expression  of  an adjudication  which,  so  far  as  regards  the  Court expressing it,  conclusively determines the rights of the parties  with  regard  to  all  or  any  of  the  matters  in controversy in the suit and may be either preliminary or final.  It  shall  be  deemed to  include  the  rejection  of  a plaint  and  the  determination  of  any  question within section 144, but shall not include –    (a) any  adjudication  from  which  an  appeal  lies  as  an

appeal from an order, or    

(b) any order of dismissal for default.   

96. Appeal from original decree

   (1)  Save where otherwise expressly  provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any  Court  exercising  original  jurisdiction  to  the  Court authorized to hear  appeals from the decisions of  such Court.

*** ***

Order  XLI  Rule  22. Upon  hearing,  respondent  may object to decree as if he had preferred a separate appeal

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   (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 19[but may also state that the finding against him in the Court below in respect of any issue ought to have been  in  his  favour;  and  may  also  take  any  cross- objection] to the decree which he could have taken by way of appeal:

Provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

19[Explanation.- A respondent aggrieved by a finding of the  Court  in  the  judgement  on  which  the  decree appealed  against  is  based  may,  under  this  rule,  file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient  for  the  decision  of  the  suit,  the  decree,  is, wholly or in part, in favour of that respondent.]   

Order XLI Rule 33. Power of Court of Appeal

The Appellate  Court  shall  have power  to  pass  any decree and make any order which ought to have been passed or  made and to  pass  or  make such  further  or other decree or order as the case may require, and this power may be exercised by the Court  notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties,  although such respondents or  parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all  or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on  which  the  Court  from  whose  decree  the  appeal  is preferred has omitted or refused to make such order.

Section 11 - Res judicata

19  Inserted by Central Act No. 104 of 1976 Page 10 of 33

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title,  in  a Court competent  to  try  such  subsequent  suit  or  the  suit  in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I - The expression "former suit" shall denote a  suit  which  has  been  decided  prior  to  the  suit  in question whether or not it was instituted prior thereto.”

    12) The  High  Court  referred  to  various  judgments  in  respect  of

applicability of the principle of res judicata, therefore, non-filing of

the  appeal  by  the  State  in  the  other  two suits  operates  as  res

judicata. The High Court referred to a judgment of  this  Court in

Sheodan  Singh  wherein,  this  Court  held  that  once  a  decree

passed in the suit attains finality, it cannot be disturbed indirectly

by adjudicating the very same questions in another appeal. We find

that the findings recorded by the High Court are patently erroneous

for the reasons recorded hereinafter.  Therefore, non-filing of the

appeal by the State in the other two suits operates as res judicata

in the third suit.

13) The learned trial  court  had clubbed all  the three suits  and that

common evidence was recorded,  when it  recorded the following

fact:  “All the above three suits have been clubbed and a joint trial has been held. O.S.No.274/83 has been taken as the leading suit and the evidence recorded in that suit has been taken as the evidence for the remaining two suits  also.  The  parties  to  all  the  three  suits  can  be divided into three groups…...”

14) Learned counsel for the respondents has tried to draw distinction Page 11 of 33

between an order of consolidation of suits and the order where a

common judgment  is  rendered  in  different  suits.  In  Sri  Gangai

Vinayagar Temple, the Court referred to judgment in Chitivalasa

Jute  Mills. However,  we  find  that  distinction  drawn  by  learned

counsel for the respondents is not tenable in law. Chitivalasa Jute

Mills is a case where one suit was filed at Reva in Madhya Pradesh

and another in Vishakhapatnam.  The Court noticed that claim in

one  suit  is  a  defense  in  another  suit,  therefore,  the  order  was

passed  for  transfer  of  a  subsequent  suit  filed  at  Reva  to

Vishakhapatnam.  

15) In the present case, evidence have been recorded only in one suit

as all the three suits have been clubbed together. In view of the

said fact, we find that merely the word consolidation has not been

used by the learned trial court, therefore, it will not be a case of

consolidation of suits but of separate trials.    

16) In  Banarsi,  the provisions of Order XLI Rule 22 of the Code as it

existed before and after the amendment in 1976 as well as Order

XLI Rule 33 of the Code have been considered. The said judgment

arises out  of  a fact  where a suit  for  specific performance of  an

agreement was filed by the respondent in appeal before this Court.

The  appellants  also  filed  a  suit  seeking  cancellation  of  the

agreement,  the  basis  of  the  suit  for  specific  performance.  The

learned  trial  court  ordered  the  appellants  to  deposit  a  sum  of

Rs.2,40,000/-  but  the  decree  for  specific  performance  was  not

granted. Two appeals were taken up for hearing preferred by the

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appellants  by  the  learned  Additional  District  Judge.  Both  the

appeals  were  dismissed  but  without  any  cross  objections  or  an

appeal, the Court decreed the suit for specific performance filed by

the  plaintiffs.   The  second  appeal  before  the  High  Court  was

dismissed. It was held that the First Appellate Court committed no

error of law exercising the powers under Order XLI Rule 33 of the

Code to pass a decree for specific performance.

17) This Court examined the question as to whether decree for specific

performance  could  be  granted  once  declined  by  the  trial  court

without  filing  any  appeal  or  cross-objections.  The  Court  held  as

under:

"8.  Sections  96  and  100  CPC  make  provision  for  an appeal  being  preferred  from every  original  decree  or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal.  However, it  is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [AIR  1967  SC  1470  :  (1967)  3  SCR  153]  , Jatan Kumar  Golcha v. Golcha  Properties  (P)  Ltd. [(1970)  3 SCC 573]  and Ganga Bai v. Vijay Kumar[(1974)  2  SCC 393]  .)  No  appeal  lies  against  a  mere  finding.  It  is significant to note that both Sections 96 and 100 CPC provide  for  an  appeal  against decree and  not against judgment.   9.  Any respondent  though he  may not  have  filed  an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by  laying  challenge  to  a finding recorded  in  the impugned  judgment  against  him…………………………A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection — both are filed against decree and not

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against judgment and certainly not against any finding recorded  in  a  judgment.  This  was  the  well-settled position of law under the unamended CPC.”   

  18) This Court while considering the amendments made in the Code in

the year 1976, held that even under the amended provisions of

Order XLI Rule 22 of the Code, a party in whose favour the decree

stands in its entirety is neither entitled nor obliged to prefer any

cross objections. However, by an amendment in Order XLI Rule 22

of the Code, it  is permissible to file cross objections against the

finding.  The  respondent  may  defend  himself  without  filing  any

cross objections to the extent to which decree is in his favour. The

Court held as under:

"10.  The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection.  However,  the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has  resulted  we  will  shortly  state.  A  respondent may defend himself  without filing any cross-objection to the extent to which decree is in his favour; however, if  he  proposes  to attack any  part  of  the  decree  he must  take  cross-objection.  The  amendment  inserted by  the  1976  amendment  is  clarificatory  and  also enabling and this may be made precise by analysing the provision. There may be three situations:    

(i)  The  impugned  decree  is partly in  favour  of the  appellant  and partly in  favour  of  the respondent.    (ii)  The  decree  is entirely in  favour  of  the respondent  though  an issue has  been  decided against the respondent.    (iii)  The  decree  is entirely in  favour  of  the

Page 14 of 33

respondent  and  all  the issues have  also  been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

  11.  In  the type of  case (i)  it  was necessary for  the respondent  to  file  an  appeal  or  take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment  CPC  did  not  entitle  nor  permit  the respondent to take any cross-objection as he was not the  person  aggrieved  by  the  decree.  Under  the amended CPC,  read  in  the  light  of  the  explanation, though it is still  not necessary for the respondent to take  any  cross-objection  laying  challenge  to any finding adverse to him as the decree is entirely in his  favour  and  he  may  support  the  decree  without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objections to a finding recorded against him either while answering an issue or  while  dealing  with  an  issue.  The  advantage  of preferring such cross-objection is spelt out by sub-rule (4).  In  spite  of  the  original  appeal  having  been withdrawn or dismissed for default, the cross-objection taken to any  finding by the respondent shall  still  be available  to  be  adjudicated  upon  on  merits  which remedy was not available to the respondent under the unamended  CPC.  In  the  pre-amendment  era,  the withdrawal  or  dismissal  for  default  of  the  original appeal  disabled  the  respondent  to  question  the correctness  or  otherwise  of  any finding recorded against the respondent.”

19) The  present  is  a  case  where  the  decree  is  of  dismissal  of  suit

therefore,  entirely  in  favour  of  the  State  and  not  executable.

Though  an  issue  has  been  decided  against  the  State  as  falling

within  second  and  third  situation  delineated  by  this  Court.  This

Court held that in the absence of cross appeals or cross objections,

Page 15 of 33

the First Appellate Court did not have the jurisdiction to modify the

decree that is to grant decree for specific performance which was

not granted by the trial court.   

20) The Court did not find any merit in the argument that the Appellate

Court was not powerless to grant decree as such decree has been

granted in terms of Order XLI Rule 33 of the Code. The Court held

as under:

"15.  … While  allowing  the  appeal  or  otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court.  The object sought to be achieved by conferment of such power on the appellate court is to avoid  inconsistency,  inequity,  inequality  in  reliefs granted  to  similarly  placed  parties  and  unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power,  higher  the  need  for  caution  and  care  while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside  or  interfered  by  the  appellate  court  is  so inseparably  connected  with  the  portion  not  appealed against  or  left  untouched  that  for  the  reason  of  the latter  portion  being  left  untouched  either  injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power  cannot  be  exercised  to  the  prejudice  or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly,  such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality  cannot  be reversed to the advantage of  such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the  former  relief  cannot  be  granted  in  favour  of  the respondent  by  the  appellate  court  exercising  power

Page 16 of 33

under Rule 33 of Order 41.”    

21) Such  view  of  the  Court  has  been  followed  in  a  judgment  in

Hardevinder Singh. The said judgment arises out of a suit filed

for  possession  of  the  suit  land,  challenging  the  Will  said  to  be

executed in favour of the defendants. The suit for joint possession

was  decreed  holding  that  the  Will  is  surrounded  by  suspicious

circumstances  and  that  the  suit  land  was  joint  Hindu  family

property. In an appeal, the First Appellate Court recorded a finding

that the property of the deceased Shiv Singh was self-acquired and

that  the  Will  in  favour  of  defendant  Nos.  1  to  4  was  validly

executed.  The  First  Appellate  Court  dismissed  the  suit  for  the

reason  that  there  is  a  settlement  between  the  parties.  The

defendant No. 5, brother of the Plaintiff who had similar interest as

that  of  the  plaintiff,  aggrieved  against  the  said  judgment  and

decree passed by the First Appellate Court filed the second appeal,

which was dismissed as not maintainable. In these circumstances,

this Court held that a person has a right to maintain an appeal if

such person is prejudicially or adversely affected by a decree. It

was held that defendant No. 5,  brother of the plaintiff benefited

from the decree granted  by  the  trial  court  but  the  plaintiff  has

settled  the  dispute  with  defendant  Nos.  1  to  4,  the  rights  of

defendant  No.  5  were  unsettled  and  the  benefit  accrued  in  his

favour became extinct,  therefore,  he had suffered a  legal  injury

which could be challenged in second appeal. With the said finding,

the judgment of the High Court was set aside and the matter was

Page 17 of 33

remitted to the High Court  to decide  afresh.  This  Court  held  as

under:

"21.  After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is  basically  that  a  respondent  may  defend  himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part  to  file  the  cross-objection.  In Banarsi v. Ram Phal [(2003) 9 SCC 606 :  AIR 2003 SC 1989] ,  it  has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein.  Category  1  deals  with  the  impugned  decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, the respondent must file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which  deal  with  a  decree  entirely  in  favour  of  the respondent though an issue had been decided against him or  a  decree entirely  in  favour  of  the respondent where all the issues had been answered in his favour but  there  is  a  finding  in  the  judgment  which  goes against him, in the pre-amendment stage, he could not take  any  cross-objection  as  he  was  not  a  person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding adverse to him as  the  decree  is  entirely  in  his  favour,  yet  he  may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against  him either while answering an issue or while dealing with an issue.  It  is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding  by  the  respondent  would  still  be  adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.”         

(emphasis Supplied)  

22) The judgment in Sri Gangai Vinayagar Temple is relied upon by Page 18 of 33

both the parties.  Learned counsel for the appellants relies upon

para 25 of the order whereas, counsel for the respondents relies

upon para 27 of the order. Both the paragraphs read as under:  

“25. On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against  the  others,  various  High  Courts  have  given divergent and conflicting opinions and decisions………. ……..Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigorous of res judicata flowed from the notion that Section 11 of the Code refers only to “suits” and as such does not include “appeals” within its  ambit;  that  since  the  decisions  arrived  in  the connected suits were articulated simultaneously, there could  be  no  “former  suit”  as  stipulated  by  the  said section;  that  substance,  issues  and  finding  being common or substantially similar in the connected suits tried together,  non-filing of  an appeal  against  one or more  of  those  suits  ought  not  to  preclude  the consideration of other appeals on merits; and that the principle  of  res  judicata  would  be  applicable  to  the judgment,  which  is  common,  and  not  to  the  decrees drawn on the basis of that common judgment.

xxx xxx xxx

27.   Procedural norms, technicalities and processal law evolve  after  years  of  empirical  experience,  and  to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by  Section  151  CPC,  as  clarified  by  this  Court  in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85. In the instance of suits in which common issues have  been  framed  and  a  common  trial  has  been conducted, the losing party must file appeals in respect of  all  adverse  decrees  founded  even  on  partially adverse  or  contrary  speaking  judgments.  While  so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every

Page 19 of 33

inconvenient  or  disagreeable  or  unpropitious  or unfavourable  finding  or  observation  contained  in  a judgment, but that this can be done by way of cross- objections  if  the  occasion  arises.  The  decree  not assailed thereupon metamorphoses into the character of a “former suit”. If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it  an  anathema to  allow  a  party  to  achieve  a  result indirectly when it has deliberately or negligently failed to  directly  initiate  proceedings  towards  this  purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because,  if  so done,  a miscarriage of justice inevitably and inexorably ensues. Statutory law and processual law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the tenant diligently filed an appeal against the decree at least in respect of OS No. 5  of  1978,  the legal  conundrum that  has  manifested itself and exhausted so much judicial time, would not have arisen at all.”

23) It may be noticed that separate decree is required to be preferred

in each suit  even though the suits  are consolidated.  The three-

Judge Bench in  Sri Gangai Vinayagar Temple has categorically

held that where a common judgment has been delivered in cases

in which consolidation orders have been passed, the filing of an

appeal leads to the entire dispute becoming sub judice again.  The

aforesaid judgment arises out of the fact whether tenant has filed a

suit  to protect its possession during the lease period which was

coming  to  an  end  on  January  1,  1983,  claiming  injunction  not

specifically challenging the alienation by the trustees of a public

trust.  The  trustees  have  filed  two  separate  suits  for  claiming

arrears  of  rent,  one  for  claiming  Rs.  268/-  and  another  for  Rs.

2600/.

Page 20 of 33

24) The tenant’s suit and the suit for the recovery of Rs. 2600/- were

dismissed. Only one appeal was preferred by the tenant against

the decree passed in the suit for recovery of Rs. 268/-. In these

circumstances, it was held that since the claim of the tenant in his

suit  was  substantially  in  respect  of  the  right  of  the  trustees  to

alienate the property of the trust as alleged by the tenant, which is

the issue in the other suits as well, therefore, the decree in the suit

for injunction filed by the plaintiff would operate as  res judicata.

But in the present case, an appeal in the first and second suit is

pending in which the appellant has right to support decree in terms

of Order XLI Rules 22 and 33 of the Code.  

25) Learned  counsel  for  the  respondents  strongly  relies  upon  a

Constitution  Bench  judgment  of  this  Court  in  Badri  Narayan

Singh to contend that the findings recorded in one appeal operate

as res judicata in the second appeal. To appreciate such argument,

some facts leading to the said judgment need to be mentioned.

The election of the appellant was challenged before the Election

Tribunal on the ground that the appellant was holding an office of

profit and, therefore, it is against the provisions of Section 7 of the

Representation of the People Act, 1951. There was allegation that

appellant had also committed corrupt practices. On the other hand,

respondent  filed  a  petition  praying  for  the  declaration  that  the

election of the appellant was void and also claimed declaration that

he  was  duly  elected  having  polled  more  votes  after  appellant-

Page 21 of 33

elected candidate. The Election Tribunal found that the appellant

was not holder of office of profit but held that he is guilty of corrupt

practices. The election of the appellant was set aside but did not

grant  the  declaration  that  the  respondent  was  duly  elected

candidate.  The  appellant  filed  Election  Appeal  No.  7  of  1958

whereas the respondent filed Election Appeal No. 8 of 1958 in the

High Court against the order of the Election Tribunal. The appeal

filed by the appellant was dismissed holding that he was holding

office of profit but has not indulged in corrupt practice whereas the

appeal filed by the respondent was allowed by a common judgment

declaring the respondent  to be duly  elected.  The appellant filed

appeal before this Court only against the order in Appeal No. 8 of

1958.  All the grounds of the appeal relate to the finding of the

High Court in Appeal No. 7 of 1958. In appeal before this Court, a

preliminary objection was taken that no appeal was preferred by

the appellant against the order of the High Court in Appeal No. 7 of

1958. The Court distinguished the earlier judgment in Narhari.  It

held that though Appeal Nos. 7 and 8 of 1958 arose out of one

proceeding  but  subject  matter  of  each  appeal  was  different,

therefore,  the final  judgment would operate as  res judicata. The

relevant findings read as under:

“14.  It is true that both the Appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election  Tribunal.  The  subject-matter  of  each  appeal was, however, different.  The subject-matter of Appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with  the  question  of  right  of  Respondent  1  to  be

Page 22 of 33

declared as duly elected candidate………..  The finding about his holding an office of profit served the purpose of  both  the  appeals,  but  merely  because  of  this  the decision of  the High Court  in  each appeal  cannot  be said to be one decision.  The High Court came to two decisions.  It  came  to  one  decision  in  respect  of  the invalidity of the appellant's election in Appeal No. 7. It came to another decision in Appeal No. 8 with respect to the justification of the claim of Respondent 1 to be declared as a duly elected candidate, a decision which had  to  follow  the  decision  that  the  election  of  the appellant  was  invalid  and  also  the  finding  that Respondent  2,  as Ghatwal,  was  not  a  properly nominated candidate. We are therefore of opinion that so  long as  the  order  in  the  appellant's  appeal  No.  7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the  Bihar  Government  and  therefore  could  not  have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in  the  present  appeal,  which  is  founded  on  the contention that that finding is incorrect.”

(Emphasis Supplied)    

26) The said judgment has no applicability to the facts of the present

case as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has

not attained finality and the same are still subject matter of appeal

before the First Appellate Court wherein, the findings recorded by

the trial court can be set aside while maintaining ultimate decree of

dismissal of the suit. In Badri Narayan Singh, the decision in an

appeal became final, holding the appellant to be not duly elected

candidate. The Appeal No. 8 of 1958 was in respect of declaration

that  the  respondent  shall  be  deemed  to  be  elected  candidate.

Therefore, in the absence of finality of judgments, there cannot be

any question of such finding binding in the third suit.   

27) The Narhari arises out of a suit for possession of 1/3 share of land

from the 2 sets of defendants.  The suit was partly decreed. The Page 23 of 33

trial court decreed the suit; however, two appeals were preferred

by two sets of defendants. Both the appeals were allowed and the

suit  was dismissed.  The plaintiff filed one appeal after filing the

consolidated court fee for the whole suit and by impleading all the

defendants as respondents.   The argument raised was that the

plaintiff has filed only one appeal, therefore, the findings recorded

in the other appeal will operate  res judicata in the second appeal

preferred by the plaintiff. The Court held as under:  

“5.  …..The  question  of  res  judicata  arises  only  when there are two suits. Even when there are two suits, it has  been  held  that  a  decision  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 ap- pealed against with a different  number  or  a  copy  of  it  was  attached  to  a different  appeal.  The  two  decrees  in  sub-  stance  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 conflict  of  decisions regarding this question not only in the High Court of the State but also among the different High Courts in India……”

28) Ganga Bai is the judgment arising out of the proceeding prior to

amendment of Order XLI Rule 22 of the Code. The High Court held

that  the  first  appeal  filed  by  defendant  Nos.  2  and  3  was  not

maintainable even though the suit  was wholly dismissed against

them. The Court held that right of appeal is a creature of statute

and that it is not inherent right.  It was held as under:

"17.  These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against  an  order  passed  under  rules  from  which  an appeal  is  expressly  allowed  by  Order  43  Rule  1.  No appeal  can  lie  against  a  mere  finding  for  the  simple

Page 24 of 33

reason  that  the  Code  does  not  provide  for  any  such appeal. It must follow that First Appeal No. 72 of 1959 filed by Defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court.   

xx xx xx   21. Thus, the appeal filed by Defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable…"

29) In  Ramesh  Chandra, the  Court  held  that  one  of  the  tests  to

ascertain  if  a  finding operates  as  res  judicata is  that  the  party

aggrieved could challenge it by way of an appeal.  The Court held

as under:   

“3. One of the tests to ascertain if a finding operates as  res  judicata  is  if  the  party  aggrieved  could challenge  it.   Since  the  dismissal  of  appeal  or  the appellate decree was not against defendants. 2 and 3 they could  not  challenge it  by way of  appeal.  Even assuming that defendant 1 could challenge the finding that liability of rent was of defendants 2 and 3 as they were  in  possession,  he  did  not  file  any  written statement  in  the  trial  court  raising  any  dispute between himself and defendants 2 and 3. There was thus no occasion for the appellate court to make the observation  when  there  was  neither  pleading  nor evidence……”

30) In another judgment reported as  S. Nazeer Ahmed, it has been

held  that  the  appellant  without  filing  a  memorandum of  cross-

objections  in  terms  of  Order  XLI  Rule  22  of  the  Code,  could

challenge  the  finding  of  the  trial  court.   The  respondent  in  an

appeal is entitled to support the decree of the trial court even by

challenging any of the findings that might have been rendered by

the trial court against himself. For supporting the decree passed by

the trial court, it is not necessary for a respondent in the appeal, to

Page 25 of 33

file a memorandum of  cross-  objections challenging a particular

finding that is  rendered by the trial  court against him when the

ultimate decree itself is in his favour. The court held as under:

“7.  The High Court, in our view, was clearly in error in holding  that  the  appellant  not  having  filed  a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule  2  of  the  Code.  The  respondent  in  an  appeal  is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered  by  the  trial  court  against  himself.  For supporting the decree passed by the trial court, it is not necessary  for  a  respondent  in  the  appeal,  to  file  a memorandum  of  cross-objections  challenging  a particular  finding  that  is  rendered  by  the  trial  court against  him when the ultimate  decree itself  is  in  his favour.  A memorandum of  cross-objections  is  needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis  that  the  appellant  not  having  filed  a memorandum of  cross-objections,  was not entitled to canvas  the  correctness  of  the  finding  on  the  bar  of Order 2 Rule 2 rendered by the trial court.”

31) Mr. Dave vehemently argued that  res judicata  in terms of Section

11 of the Code is not about a decree but to a finding in the former

suit. It is argued that the first suit and second suit are the former

suits  in  which  the  findings  were  written  against  the  State,

therefore,  such  findings  will  operate  res  judicata. The  said

argument proceeds on the basis that the Court would mean the

High Court and, therefore, finding in the first and second suit would

bar  the  subsequent  proceedings  arising  out  of  the  third  suit  in

Page 26 of 33

appeal.  We  find  that  such  an  argument  is  not  tenable.   As

mentioned  above,  that  the  decree  of  dismissal  of  the  first  and

second suit has not attained finality which are under challenge by

the  plaintiffs  and  the  defendants-State  are  entitled  to  dispute

findings on  Issue No. 1 even without filing cross objections or in

terms of Order XLI Rule 33 of the Code that the decree of dismissal

of suit on the grounds other than what weighed with the learned

trial court. All the issues are open for consideration before the First

Appellate Court.  

32) Section 11 and Explanation I of the Code would be applicable in

subsequent proceedings between the same parties or between the

parties under whom they or any of them claimed under the same

title. But the findings in the first and second suit will not operate as

res judicata as such findings are subject matter of challenge in the

appeals filed by the plaintiffs in their respective suits. All the three

suits have been decided together and the three appeals pending

against such judgment and decrees.  Therefore, it cannot be said

that the first and the second suit are the former suits as the decree

passed  therein  has  not  attained  finality.  The  findings  recorded

therein will not, therefore, operate as  res judicata  as the State is

not  obliged  to  challenge findings  on  Issue No.1  in  the  first  and

second suit even after the amendment of Order XLI Rule 22 of the

Code.     

33) This  Court in  Lonankutty has examined the applicability  of  the

principles of Section 11 in a matter wherein two suits were filed. Page 27 of 33

Civil  Suit  No.  666  of  1954  was  filed  by  the  appellant  for  an

injunction from taking water from Survey No. 673 and discharge

the  water  back  through  Survey  No.  673  and  for  a  mandatory

injunction directing them to demolish the bund and close the sluice

gates.  The  respondents  filed  Civil  Suit  No.  5  of  1957  for  an

injunction restraining the appellant from trespassing on the bund

constructed  by  them  and  for  preventing  the  appellant  from

interfering with their right to take water from Survey No. 673 and

to discharge the water back through that land. The second was

subsequent suit. The suit of the appellant was decreed. However,

the  suit  of  the  respondents  was  dismissed  but  decreed  to  the

extent of the right claimed regarding the agriculture use. The result

of decrees passed in two suits was that the respondents could take

water from the land of the appellant and discharge for agricultural

purposes only and not for fishing. Both filed two appeals arising out

of two suits. However, all the appeals were dismissed. No appeal

came to be filed arising out of second suit filed by the respondents.

It is in these circumstances it was held that the suit filed by the

respondents,  though  after  the  suits  of  the  plaintiff,  would  be

deemed  to  be  former  suits  as  the  decree  in  the  said  suit  has

attained finality. The Court held as under:

"19.   Respondents  did  not  file  any  further  appeal against the decree passed by the District Court in the appeals  arising out  of  their  suit.  They filed a second appeal  in  the High Court,  only as against  the decree passed by the District Court in AS No. 66 of 1958 which arose out of the decree passed by the trial court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents'

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suit  became  final  and  conclusive.  That  decision,  not having been appealed against, could not be reopened in the second appeal arising .out of the appellant's suit…    

xx xx xx    

21.  In its remanding judgment dated July 8, 1964, by which the plea of  res judicata was repelled, the High Court relied principally on the decision of this Court in Narhari v. Shankar [AIR 1953 SC 419 : 1950 SCR 754;] . That decision is in our opinion distinguishable because in  that  case  only  one  suit  was  filed  giving  rise  to  2 appeals.  A  filed  a  suit  against  B  and  C  which  was decreed.  B  and  C  preferred  separate  appeals  which were allowed by a common judgment, but the appellate court drew 2 separate decrees. A preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against the other decree on insufficient court fee. The High Court held that A should have filed 2 separate appeals and since one of the appeals was time barred, the appeal filed within time was barred by res judicata. This Court held that “there is no question of the application of the principle of res judicata”, because “when there is only one suit, the question of res judicata does not arise at all”. This was put on the ground 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”. In our case, there were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be reopened in the second appeal filed against the decree passed in  an appeal  arising out  of  another  suit.  This precisely  is  the  ground  on  which Narhari  case was distinguished  by  this  Court  in Sheodan  Singh v. Smt Daryao Kunwar [AIR 1966 SC 1332: (1966) 3 SCR 300]. It  was  held  therein  that  where  the  trial  court  has decided 2 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal.”

34) The  reliance  of  Mr.  Dave  on  the  judgment  in  Ashok  Nagar

Welfare  Association  is  not  relevant  for  the  present  case  as

question examined was the scope of interference in the Special

Leave  Petition.  That  was  a  case  whether  an  ex parte decree Page 29 of 33

granted in two suits by the trial court was set aside in appeal.  The

Special Leave Petition was directed against such order.  This Court

has  rightly  not  interfered  with  the  setting  aside  the  ex  parte

judgment.   Bhanu  Kumar  Jain is  also  a  case  delineating  the

remedies  available  to  a  defendant  in  the  event  of  an  ex parte

decree granted. The said judgment is not applicable to the facts of

the present case.   

35) Another judgment referred to by Mr. Dave is Nirmala Bala Ghose.

In the said case, the decree against deity had attained finality in

two suits. It was held that it is not open to another defendant to

challenge the decree insofar as it is against deities.  The Court has

held as under:

“23. In this appeal, the two deities are also impleaded as party respondents. But the deities have not taken part in the proceeding before this Court, as they did not  in  the  High  Court.  The  decree  against  the  two deities  has  become  final,  no  appeal  having  been preferred to the High Court  by the deities.  It  is  not open to Nirmala to challenge the decree insofar as it is against  the deities,  because she does not  represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are  not affected by the decree of  the trial court. She is not seeking in this appeal to claim a mere exalted right under the deed for herself, which may require  re-examination  even incidentally  of  the correctness of the decision of the trial court and the High  Court  insofar  as  it  relates  to  the  title  of  the deities.  It  was  urged,  however,  that  apart  from the claim which Nirmala has made for herself, the Court has power and is indeed bound under Order 41 Rule 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this  Court  comes  to  the  conclusion  that  the  deed operates  as  an absolute  dedication  in  favour  of  the

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two  deities.  Order  41  Rule  313,  insofar  as  it  is material, provides:

"The appellate court shall have power to pass any decree and make any order which ought to have  been  passed  or  made  and  to  pass  or make such further or other decree or order as the case may require, and this power may be exercised  by  the  Court  notwithstanding  that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents  or  parties,  although  such respondents or parties may not have filed any appeal or objection:"

The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases  where  interference  in  favour  of  the  appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court  to adjust the rights of  the parties. Where in  an appeal  the Court  reaches a conclusion which  is  inconsistent  with  the  opinion  of  the  Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does  not  confer  an  unrestricted  right  to  re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.”  

36) We  find  that  the  High  Court  has  failed  to  draw  the  distinction

between the decree and a finding on an issue.  It  is  the decree

against which an appeal lies in terms of Section 96 of the Code.

Decree  in  terms  of  Section  2(2)  of  the  Code  means  formal

expression of an adjudication conclusively determining the rights of

the parties.  The defendants-State could not file an appeal against

a decree which was of a dismissal of a suit simpliciter. The findings

on Issue No. 1 against the State could be challenged by way of Page 31 of 33

cross-objections in terms of amended provisions of Order XLI Rule

22 of the Code but such filing of cross-objections is not necessary

to dispute the findings recorded on Issue No. 1 as the defendants

have a right to support  the ultimate decree passed by the trial

court of dismissal of suit on grounds other than which weighed with

the learned trial court. Even in terms of Order XLI Rule 33 of the

Code, the Appellate Court has the jurisdiction to pass any order

which ought to have been passed or made in proceedings before it.

37) As per facts on record, Original Suit Nos. 274 of 1983 and 276 of

1983 have been dismissed. The plaintiffs are in appeal in both the

suits  before  the  First  Appellate  Court.  Therefore,  such  decree

including the finding on Issue No. 1 has not attained finality as the

Appellate Court is ceased of the entire controversy including the

findings of  fact  on  Issue No.  1.  The defendants  have a  right  to

dispute  such  findings  by  filing  cross-objections  under  Order  XLI

Rule 22 of the Code as amended in the year 1976 or even in the

exercise  of  the  powers  conferred  on  the  Appellate  Court  under

Order XLI Rule 33 of the Code.

38) The decree is  of  dismissal  of  the suit,  whereas,  the reasons for

passing such decree is judgment as defined in Section 2(9) of the

Code.  In terms of Section 11 read with Explanation I, the issue in a

former suit will operate as res judicata only if such issue is raised in

a subsequent suit. Since, the issue of title has not attained finality,

therefore,  it  is  not  a  former  suit  to  which  there  can  be  any

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application of Section 11.    

39) In view of the above, we allow the present appeals, set aside the

order  passed by  the  High Court  in  the  first  appeal  filed by  the

State, as the findings on Issue Nos. 1 and 2 in the first and second

suit  do not operate as  res judicata.  The pending applications, if

any, shall stand disposed of.

40) In view of the orders in the appeals, Contempt Petition (Civil) No.

204 of 2014 is disposed of.

  .............................................J.

(L. NAGESWARA RAO)    

  .............................................J.

(HEMANT GUPTA)   NEW DELHI; AUGUST 09, 2019.

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