1. The appellant filed a suit for recovery of rent in the years 1931-1932 and 1932-1933 and enforcement of a charge in respect of that rent. The main question in issue in the suit was whether the appellant was the landlord, or whether the respondents 3 and 4 the donees from a member of the appellant's family were the landlords. The tenants, respondents 1 and 2, had attorned to respondents 3 and 4. The suit was dismissed by the trial Court and the lower appellate Court confirmed that decree. A second appeal was pending in this Court when Madras Act IV of 1938 came into force. The respondents 1 and 2 filed an application M.P. No. 582 of 1938 in the trial Court in which they impleaded both the rival claimants to the landlord's title and alleging that they held under present respondents 3 and 4, they made a deposit of the rent for faslis 1346 a,nd 1347, and notwithstanding the objection of the present appellant, they obtained a declaration, that the prior arrears were wiped off by the operation of Section 15 of Madras Act IV of 1938. They did not however bring this order to the notice of this Court at the time of the hearing of the second appeal. Respondents 1 and 2 did not contest the second appeal, but they were represented in the proceedings in the lower appellate Court and must presumably have had notice of the second appeal. The result, therefore, was that this Court in ignorance of the proceedings under Act IV of 1938 passed a preliminary decree for the full amount claimed for rent for the two relevant years, upholding the contention of the appellant that he was the person entitled to the rent and that the respondents 3 and 4 had no title.
2. When the appellant applied for a final decree in pursuance of this preliminary decree passed in second appeal, respondents 1 and 2 objected on the ground that the arrears for the two years in suit had been cancelled by reason of the order in M.P. No. 582 of 1938 to which the appellant was a party and it has been held by both the Courts below that the appellant is barred from claiming a final decree in respect of those arrears.
3. It seems to me that this decision is wrong. No doubt had the order on M.P. No. 582 of 1938 been brought to the notice of this Court sitting in second appeal the result would have been that the preliminary decree would not have been passed. But the respondents 1 and 2 negligently failed to bring this order to the notice of the appellate Court and the result was that a preliminary decree which ought not to have been passed, was passed against them. It is, in my opinion, not open to the respondents 1 and 2 to contend in the final decree proceedings that the preliminary decree was wrong. My attention has been drawn to a decision of Venkataramana Rao, J., in Adinarqyana v. Chengiah A.I.R. 1937 Mad. 918 which purports to follow the decision of a Bench of this Court in Rajah Ramachandra Sum Harischandra Deo Garu v. Akella Venkatalakshminarqyana (1918) 37 M.L.J. 65. I am not now concerned with the correctness of the learned Judge's decision, for it seems to me that the learned Judge was dealing with a totally different state of affairs from that which is now before me. I would however with great respect suggest that it is possible to take a different view from that which the learned Judge has taken. The learned Judge was, however, concerned with the case in which a preliminary decree was passed by the sale of properties which were by statute made inalienable, so that the sale was opposed to public policy. No such considerations arise in the present case. Here the respondents 1 and 2 had obtained a judicial discharge which they failed to plead in the second appeal. The position seems to me exactly the same as it would have been, had they paid the rent in cash to the landlord and negligently failed to prove this payment before the Court which heard the appeal. The respondents 1 and 2 are, in my opinion, barred by res judicata from contending that the appellant is barred by res judicata. They had a good defence to the second appeal, which they negligently failed to put forward and it seems to me that it would make no difference whether that defence was in the nature of a plea of actual discharge by payment or of discharge by judicial declaration under the new statute. In both cases it is a defence which must be set up and established and if they failed to set it up and establish it at the proper time, they cannot be heard after the preliminary decree has been passed in the case for a particular amount, to contend that that decree is wrong.
4. The appeal is therefore allowed with costs here and in the Courts below and there will be a final decree as prayed.
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