(Raja Srimathu) Muthuvijaya Raghunatha Doraisingam vs N.A. Swaminathan Chettiar and Others

Jackson, J.—The short point in this second appeal is whether when the suit abates against one of several joint decree-holders it abates

against all. The District Munsif decreed

that plaintiff and defendants 6 to 31 be put in possession of the Rajali Kaduvetti fields.

The appeal abated against defendant 25, The appellant, defendant 1, wants it declared that the decree-holders have no right to the fields, or to

disturb his occupation. Now defendant 25 under the decree gets the right and can oust defendant 1. Is it worthwhile considering whether the

remaining defendants have or have not the right? The line of argument is that if these remaining defendants had brought a bona fide representative

suit they could have litigated the right of defendant 25, and this appeal can go on in his absence on the same line of reasoning. This illustrates the

danger of carrying principles applicable to one set of circumstances into another. In Sonachalam Pillai v. Kumaravelu Chettiar A.I.R.928 Mad.77 it

has been ruled that where persons litigate bona fide in respect of a common right the suit will operate as res judicata, against others enjoying this

common right, even though they have received no notice Under Order 1, Rule 8 of the suit.

But here we have a person who has been a party to the suit and has obtained a decree, and it is impossible by analogy to say that his right can

be litigated in his absence by other persons on appeal. The correct view, with all respect, is clearly laid down in Srinivasalu Chetti v. Guraviah AIR

1927 Mad. 505. The appeal must be dismissed: of. Maula Bux v. Chanan Mal A.I.R.1926Lah. 332. Nor can it be argued that the absence of

defendant 25 is immaterial because the interest of the defendants are separable as in Sant Singh v. Golab Singh A.I.R.1928Lah. 572. In the decree

defendant 25 is not given a separate interest apart from that of the other defendants, and his right cannot be cut up in his absence. The appeal fails

and is dismissed with costs.