In Re: R. Gundu Rao

Ramaswami, J.—The point for determination which arises on the office note is whether a single appeal can be filed against the decrees in

two suits.

The facts are the appellant herein as plaintiff filed O. S. No. 1714 of 1955 on the file of the City Civil Court. Madras, for recovery or

possession of the suit property which he had purchased in a private sale held by the Nungambakkam S. D. R. Nidhi Ltd. mortgagee thereof, In

pursuance of the power conferred under S. 69 of the Transfer of Property Act, for an injunction restraining the defendant-mortgagor from

committing waste and for mesne profits. The Nidhi (mortgagee) was not impleaded as party in that suit. The defendant therein, in her turn, filed a

suit against the plaintiff in the above suit O. S. No. 1714 of 1955 and the mortgagee-Nidhi for a declaration that no title had passed to the

purchaser and for directions to the defendants to render accounts or alternatively for recovery of Rs. 9000 from the mortgagee-Nidhi (1st

defendant therein).

Both the suits were heard together by the City Civil Court and the suit O. S. No. 1714-of 1955 was dismissed while a decree was passed in the

other suit O. S. No. 269 of 1956 declaring that no title had passed to the purchaser, defendant 2. therein, and plaintiff in the former suit, and

directing the first defendant therein (mortgagee Nidhi) to hold a fresh sale and dismissing the suit in other respects. The plaintiff in the former suit O.

S. No. 1714 of 1355 thereupon presented the above memo of appeal, S. R. No. 15407 on 4-5-1957 as-one directed against the decree in that

suit only. The office thereupon returned S. R. No. 15407 and S. R. No. 16582 querying whether any appeal had been preferred against the

decree in the connected suit, the appellant''s advocate represented the papers on 13-6-1957 after adding the number of the second suit and the

name of the first defendant in the connected suit also in the cause title and stating that this appeal has to be regarded as one directed against the

decrees in both the suits.

Thereupon it was pointed out to him that since the subject matter of the two suits are not identical and there is an additional party in the second suit

and since separate decrees have been drawn up having different consequences, separate appeals have to be filed and that the appeal which was

originally filed was directed against one of the decrees only cannot at the stage of representation be converted into one against both the decrees.

The advocate did not agree and requested that the matter might be posted before court. The learned advocate relies upon the two decisions in

Panchanada Velan v. Vaithinatha Sastrial, ILR 29 Mad 333: 16 Mad LJ 63 (FB) and in K.V. Narayanaswami Aiyar Vs. Sevadappa Goundar, ),

for his contention that two separate appeals are not necessary.

On going into these two decisions I find that the question at issue therein was whether the failure of a party to appeal against a decision in a

connected suit will not make the latter decision operate as res judicata and preclude the count from disposing of on its merits, the appeal already

filed against the decree in the other suit. The court held that the unapplied decree did not operate as res judicata in the appeal already filed and

brought up for decision of court. The Full Bench decision contains observations at the end that the District Judge should have required the

appellant to amend his memo of appeal so as to make it an appeal in both the suits. It is also seen from the report at page 68 that the subject

matter of the two suits was the same and that the appeal was also filed under the old Code.

The language of the present S. 96 C. P. C. is clear that an appeal shall he from every decree and a single appeal against the decrees in two suits

based en different causes of action and having different scopes as in the present case does not appear to be at all contemplated.

In this connection the office has brought to my notice an unreported decision of Panchapakesa Ayyar, J., dated 28-8-1951 in S. R. No. 39846

of 1951 holding that a single decree cannot be drafted when two suits were tried and disposed of together and that separate decrees should be

drafted in each suit and separate appeals filed against each decree with separate court-ice and other enclosures. In fact this office practice has

been uniform in insisting on separate appeals in cases like the present- The net result of this analysis is that the present appeal, S. 11. No. 15407,

has to be confined only to O. S. No. 1714 of 1955 as originally intended at the time of initial presentations and a separate appeal with the

necessary court-fee has to he filed against the decree in the connected suit wherein an additional party has been impleaded and the scope of which

is also different. Further court-fee paid in the present memo of appeal is only in respect of one of the suits and the memo of valuation does not

indicate anything about the other suit.

Therefore, this unregistered first appeal is not maintainable in its present form along with the petition for appointment of a receiver. Three weeks''

time is given for compliance with the directions pointed out by the office.