Stanley, C.J:— The question for our determination in this appeal is one of the application of the rule of res judicata. The appeal has been laid before a Bench of three judges owing to the recent decision in Damodar Das v. Shio Ram Das, which is in conflict with the earlier decisions of this Court.

The appeal arises out of a suit for pre-emption. The defendants, Deba, Musammat Kesar and Musammat Jawitri, on the 9th of August, 1907, sold certain zamindari property in the village of Newari to Bhuri Singh and two others. Thereupon two rival suits for pre-emption were instituted in the Court of the Munsif of Ghaziabad—one by Manphul, which was No. 1404 of 1908, and the other by the appellant, Zaharia, which was No. 1405 of 1908. By order of the Court Zaharia was made a defendant in suit No. 1404 and Manphul was made a defendant in suit No. 1405 with the object of having their respective rights determined. For convenience sake both suits were tried together without objection by the parties. Issues were knit, and amongst others the following:—

“Has Zaharia, rival pre-emptor, a preferential right against the plaintiff (i.e Manphul); and if not, have both rival pre-emptors equal rights.”

One judgement was delivered in the two suits, which was placed on the record of suit No. 1404, a copy being placed on the record of suit No. 1405. By this judgement the suit of Zaharia was dismissed and the suit of Manphul was decreed. A decree in each suit was passed. Zaharia filed an appeal in suit No. 1405, but did not appeal against the decree passed in suit No. 1404. When his appeal came on for hearing the time for appeal against the decree in suit No. 1404 had expired and a preliminary objection was raised to the hearing of the appeal, namely, that it was barred by the decree passed in suit No. 1404. It will be observed that it was necessary for the determination of suit No. 1404, that the court should find whether or not Zaharia bad a preferential right, or any right to pre-empt as against Manphul. The lower appellate court allowed the preliminary objection and dismissed the appeal. The learned District Judge in his judgement observes:—“It is obvious that even under the provisions of rule 33, order XLI, I could not set aside the decree in Manphul's favour to which Zaharia was a party. Thus if Zaharia's appeal were decreed, there would be in existence two contra dictory decrees. Manphul has, I have ascertained, already paid in the money and secured the right of pre-emption over the property. If Zaharia's appeal were decreed, to which of the two, Manphul or Zaharia, should a court award the property?” Against the decree this second appeal has been preferred.

In the case of Chajju v. Sheo Sahai, which is a case on all fours with the present, the question before us was considered. In that case two rival suits for pre-emption were instituted, in each of which each pre-emptor was made a defendant in the other suit. The suits were tried together upon the same evidence and were disposed of by a single judgement, but by separate decrees. In one of the suits the pre-emptor obtained a decree in the terms of section 214 of the former Code of Civil Procedure. In the other the pre-emptor obtained a decree subject to the condition that in the event of the first pre-emptor failing to execute his decree, the second pre-emptor should be entitled to execute it. There was no appeal against the decree in the first suit. The second pre-emptor appealed from the decree in his own suit upon certain grounds. It was decided in that case by Straight and Brodhurst, JJ., that the appellant, if he wished to get rid of the decision regarding the first pre-emptor's preferential right, should have appealed against the first pre-emptor's decree, and that, that decree having become final, the questions between the two pre-emptor's could not be re-opened on appeal from the second pre-emptor's decree. This decision was followed without, so far as I am aware, a note of dissent in a number of cases up to the time of the ruling in Damodar Das v. Sheo Ram Das.

In the case of Bal Kishan v. Kishan Lal, the same question was considered by a Full Bench consisting of Edge, C.J, Straight and Mahmood, JJ. It was held that the rule of res judicata contained in section 13 of the Code applies equally to appeals and miscellaneous proceedings as to original suits; that having regard to its main object, so far as it relates to the retrial of an issue, it refers, not to the date of the commencement of the litigation, but to the date when the Judge is called upon to decide the issue, and that where after the commencement of the trial of an issue a final judgement upon the same issue in another case is pronounced by a competent court (the identity of parties and other conditions of section 13 being fulfilled), such judgement operates as res judicata upon the decision, original or appellate, of the issue in the later litigation.

In Ram Lal v. Chhab Nath Sir John Edge, C.J, and Brodhurst, J., in a case in which the plaintiff and defendant in a suit each appealed separately, and the defendant's appeal first came on for hearing and an issue as to whether the plaintiff or the defendant had title to certain lands in dispute was decided on the facts by the appellate court adversely to the defendant, held that the plaintiff's appeal involving the same issue which came on for hearing before the same court was barred by the principle of res judicata. The Subordinate Judge treated the finding in the first appeal as operating as res judicata and the learned Judges in their judgement approve of his ruling, saying that although section 13 (of the former Code of Civil Procedure) would not apply, still the principle of res judicata applied, and that section 13 of the Code is not exhaustive, as was pointed out by their Lordships of the Privy Council in the case of Ram Kirpal v. Rup Kumri.

The rule laid down in Chajju v. Sheo Sahai was followed in Mangli v. Narain, Kesho Tiwari v. Sarju Kunwar, Munna v. Nisar Ali, Ajaib Ali Khan v. Musammat Aahraf Jahan Begam, Musammat Aziman v. Abdullah and Abdul Basit v. Ashfaq Husain.

The only conflicting authority in our Court, so far as I am aware, is that of Damodar Das v. Sheo Ram Das. In that case none of the authorities of the Court appear to have been cited, and no reference whatever is made to any such, but reliance is placed upon two decisions of, the Calcutta and Madras High Courts respectively.

I shall now refer to these cases, but first I would refer to the case of Abdul Majid v. Jew Narain Mahto. In that case Mitter and Macpherson, JJ., held that the decision of an issue in one of two suits tried together, which is not appealed against cannot be treated as res judicata so far as the same issue was concerned in an appeal against the decision in the other suit.

In Mariamnissa Bibi v. Joynab Bibi the facts were these:—Two Muhammadan co-widows—Mariamnissa Bibi and Joynab Bibi—brought two separate suits for the recovery of their dowers from the estate of their deceased husband. A question was raised in these suits whether two houses belonged to the estate of the husband. By consent of the parties the Subordinate Judge tried both the suits together and disposed of them in one judgement, it being found that the two houses belonged to Mariamnissa as her separate property. Two separate decrees were drawn up in accordance with that judgement. The other widow, Joynab, preferred an appeal against the decree in her own suit mainly on the ground that the conclusion arrived at by the Subordinate Judge in the suit of Mariamnissa Bibi respecting the title to the two houses was erroneous, but no appeal was preferred in Mariamnissa's suit. At the hearing of the appeal a question was raised on behalf of Mariamnissa that the judgement in her suit not having been appealed against operated as res judicata. It was held by Ghose, C.J, and Harington, J. (Rampini, J., dissenting) that there was no bar of res judicata. Rampini, J., in his judgement referring to section 13 of the former Code observes, at p. 1107 of the Report:—“It has also been said that the words ‘former suit’ in section 13 cannot relate to Mariamnissa Bibi's suit, as both suits were tried simultaneously and disposed of by one judgement. But there were two distinct suits, two sets of pleadings and issues, and though the two suits were disposed of by one judgement, this is an irregular procedure sanctioned only by consent but not expressly allowed by any section of the Code of Civil Procedure. In the eye of the law there were two judgements, one in each suit, though the Subordinate Judge may have delivered the same judgement in both suits. Hence there were necessarily two appeals. Mariamnissa Bibi's suit was certainly the one, first instituted, but, be that as it may, as laid down in Gururajammah v. Venkatakriahnama Chetti, it is the date of the decision which is the “former” and which is the “second” suit, and Mariam Bibi's suit was certainly finally decided on the 30th of November, 1903, while Joynab's suit is still pending final decision in this appeal. I therefore consider that Abdul Majid v. Jew Narain Mahto was wrongly decided, and I would accordingly refer the question of the correctness of the decision in it to a Full Bench.” I agree in this view. Ghose, C.J, in his judgement refers approvingly to the decision in Bal Kishan v. Kishan Lal. He remarks at page 1116: “It may be accepted as correct that the expression ‘former suit,’ as occurring in that section, as the Allahabad High Court has held in the case of Bal Kishan v. Kishan Lal, and which has been approvingly quoted by the Madras High Court in the case of Gururajammah v. Venkatakriahnama Chetti, does not relate to the date of commencement of the litigation, but to the time when the Judge is called upon to decide the issue, and ‘that the rule contained in section 13 is not limited to the Courts of first instance, and that it equally applies to the procedure of the first and second appellate Courts by reason of sections 582 and 587 respectively, but still the question here is which is the judgement that operates as a bar in this case?’ “The learned Chief Justice seems to have based his decision entirely upon section 13 of the Code of Civil Procedure of 1882. At page 1114 he says: —“section 13 of the Code of Civil Procedure, upon which the decision of the question referred to rests.”

In Gururajammah v. Venkatakrishnama the decision in Bal Kishan v. Kishan Lal was approved of and followed by Sir Arnold White, C.J, and Davies, J.

In the later case, however, of Panchanada Velan v. Vaithinatha Sastrial a different view was taken. In that case cross suits between the same parties on the same facts were tried together and judgement was given on the same day, but separate decrees were passed, and an appeal was preferred against one of the decrees alone. It was held by Sir Arnold White, C.J, and Subramania Ayyar and Davies, JJ., that the decree un-appealed did not operate as a bar under section 13 of the Code of Civil Procedure, 1882, so as to preclude the appellate Court from dealing with the decree appealed against. We find no reference in the judgement to the earlier decision of the Court in Gururajammah v. Venkatakrishnama Chetti. The judgement is very short. The learned Judges observe that technically no doubt the appeal ought to have been in both suits, but no weight is given to the technicality. The learned Judges say:—“We do not think that, either under section 13 of the Code of Civil Procedure or on general principles, the doctrine of res judicata has any application to the facts of this case. The doctrine does not apply when, as here, the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate court is asked to decide res judicata.” Later on they observe:—“It would lead to startling results if we were to hold that an appellate tribunal is precluded from dealing with the question which comes before it on appeal because an inferior court, upon the same facts, but in a case other than the case under appeal had given a decision which had not been appealed against, at the same time as the decision in the case under appeal.” The learned Judges do not point out what would be the startling results to which they apprehended a contrary conclusion would lead. An appellate court is bound to apply the rule of res judicata even though the decision is the decision of an inferior court, provided that court was competent to decide the case.

I am of opinion after careful consideration of the arguments which have been addressed to us by the learned vakil and advocate for the respective parties that the case of Chajju v. Sheo Sahai and the subsequent decisions of this Court which followed it were rightly decided. The decree obtained by Manphul stands unreversed and is binding upon the appellant. The time for impeaching it has expired, and I am not aware of any procedure by which this decree can now be rendered nugatory. It was suggested during the argument that if the appeal of Zaharia be heard and a decision be obtained in his favour, the appellate decree in his favour will have the effect of superseding the former decree, but this cannot be. A decree, unless it be a decree which is a nullity by reason of, for example, fraud, cannot be superseded except it be upon appeal in the regular course. This being so, if we acceded to the argument addressed to us, we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly, and in execution proceedings would cause a complete impasse, I would therefore dismiss the appeal.

Tudball, J.:— I concur.

Chamier, J.:— I concur. The court of first instance wrote only one judgement, but a copy of that judgement was placed upon the record of the second suit. The case must be treated in my opinion as if two separate judgements had been prepared. There were, of course, two separate decrees. The Code of Civil Procedure requires a separate judgement and decree for each suit or appeal and two or more decrees cannot be challenged by one appeal. In the absence of a provision enabling the Court to consolidate suits and appeals and pass one judgement and one decree instead of as many judgements and decrees as there are suits or appeals, I see no escape from the conclusion that in a case like the one before us or in a case like that of Abdul Basit v. Ashfaq Husain the appellant must file two appeals if he wishes to avoid the bar of res judicata.

By the Court.— The order of the Court is that the appeal be dismissed with costs.

Appeal dismissed.