K. Mammu vs Industrial Credit and Development Syndicate Limited and Another

Hari Nath Tilhari, J.—Seen the Civil Petition. This appeal along with the application for condonation of delay has been filed from the judgment and decree dated 4.7.1998 passed in Regular Appeal No. 188 of 1989 and No. 213 of 1989.

The two appeals Nos. 188 of 1989 and 213 of 1989 did arise from the judgment given in O.S. No. 119 of 1983. The present applicant infact had already filed an appeal against this very judgment passed in the First Appeal. The Regular Second Appeal No. 825 of 1998 arising from the judgment and decree, from the very judgment passed by the Appellate Court in two first appeals had been filed in this Court. Really the decree challenged in the Second Appeal No. 825 of 1998 in Court is the decree passed in the Suit No. 119 of 1983 passed by the first Appellate Court by allowing the appeal No. 188 of 1989 and dismissing the appeal No. 213 of 1989. There was one suit in which the trial Court passed the decree and two appeals were filed in the first Appellate Court and the two first appeals were disposed of by one common judgment. Both the Defendants in the suit namely debtor and the guarantor have already filed Regular Second Appeal No. 825 of 1998 after paying the full consolidated Court-fee payable with respect to entire decretal amount. In view of the decision by their Lordships of the Supreme Court in Narhari and Others Vs. Shankar and Others, which lays down the law that when a decree is passed by the trial Court in one suit and two appeals had been filed by two different set of parties and both the appeals have been disposed of by one common judgment and the trial Court''s decree is modified by one way or the other either wholly or in part, there is no necessity to file two appeals. One appeal is sufficient. It will be very appropriate to quote the following observations of their Lordships of the Supreme Court in Narhari and Others Vs. Shankar and Others, . They laid down the law after referring to the decision of the Lahore High Court in the case of Mst. Lachmi v. Mst. Bhuli AIR 1927 Lah 289. These observations read as under:

In the Lahore case, here 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.

In the present case the Plaintiff had filed only one Suit No. 119 of 1983, as mentioned earlier. The trial Court decreed the suit against the Defendant No. 1 i.e., the principal debtor and not against the guarantor. The Defendant No. 1 filed appeal No. 213 of 1989, while the Plaintiff filed the regular appeal No. 188 of 1989. The first Appellate Court by one common judgment decided both the appeals and allowed the Plaintiff''s appeal and decreed the suit, it appears, against both the Defendants i.e., the debtor and the surety or the guarantor and dismissed the Defendant No. 1''s appeal whereby the Defendant had challenged the decree passed by the trial Court. There being one suit, one common judgment of the trial Court, though two appeals had been filed by the Plaintiff and Defendant No. 1 which have been disposed of by one common judgment and as both the Defendants i.e., the principal debtor and the guarantor have already filed Second Appeal No. 825 of 1998 from that common judgment, this present appeal attempted to be filed along with the application under Order 44, in view of the law laid down by the Supreme Court in the case referred to above i.e., Narhari and Ors. v. Shanker, was not necessary and nor was needed to be filed because of the findings of the Appellate Court have been challenged in the appeal i.e., Second Appeal No. 825 of 1998 and the full Court-fee with reference to whole claim in the suit has already been paid in that appeal, so there is no question of present Petitioner filing another second appeal along with this application under Order 44 CPC The application under Order 44 with application for condonation of delay is to be dismissed on the ground that full Court-fee had already been paid on decretal amount in the suit and under the decree. This petition under Order 44 CPC along with memo of Second appeal is misconceived and is hereby dismissed. It is clarified that inspite of rejection of application under Order 44, CPC along with application for condonation of delay filed along with memo of appeal will not debar Appellants in Second Appeal No. 825 of 1998 from arguing the appeal on merits and from challenging the decree and it will always remain open to the Appellant in appeal No. 825 of 1998 to argue the matter in full challenging the Appellate Court''s decree as this will not operate as res judicata in view of Supreme Court''s decision in Narhari and Others Vs. Shankar and Others, . The application for condonation of delay as well as application under Order 44 and memo of petition filed by the present Petitioner are hereby dismissed as being misconceived and superfluous for reasons as indicated above.