Stuart, C.J:— The general question whether successful defendants in a suit can appeal from the decree in their favor has been raised in several cases in this Court, although under different circumstances. Three of these cases were cited in the argument before us in the present case, one of which, that of Anant Das v. Ashburner & Co. (1), has obviously no application, for that was simply a case where a judgment-debtor, in violation of his agreement, preferred an appeal to this Court, and which we therefore very properly disallowed. The two other cases are more germane to the question raised in the present appeal. The first was a ruling by the Full Bench in Pan Kooer v. Bhugwunt Kooer (2). There the plaintiff sued to set aside a zar-i-peshgi lease in the nature of a mortgage,/executed by his father, on the ground that the father was an extravagant and dissolute man, and that the debt contracted by him was not for necessary purposes, and could not affect the property, which was ancestral. The Subordinate Judge found that certain items of the consideration for the lease, amounting on the whole to a sum of Rs. 5,300-9-0, were borrowed for legal and necessary purposes, and he held that, until that sum was paid, the plaintiff could not recover possession, but as to the remaining items they had not been proved. Under these circumstances the Subordinate Judge dismissed, the plaintiff's suit in toto. Against this order the defendant appealed to the Judge as to the amount of the consideration for the lease and obtained a decree, and from that decree by the Judge the appeal to this Court was taken. The Division Bench before whom the appeal in the first instance was brought referred it to the Full Bench, directing attention in their referring order to certain conflicting rulings by this Court and the High Court of Calcutta. The question that thus came to be considered by our Full Bench was whether the appeal by the defendant from the, order of the Subordinate Judge to the Judge had been validly and competently taken, and the answer of the Judges of this Court was unanimously in the negative. In my own judgment in that case I held the decree by the Subordinate Judge was not one of which the defendant was entitled to complain by appeal to the Judge, remarking that such “appeal is by the defendants themselves against a decree wholly in their own favour, and the legal meaning of which is and can only be that the plaintiff's suit altogether fails;” and I further remarked that the Subordinate Judge's decree, “as read by the light of the plaint, is not only entirely in their favour, but positively beneficial to them, and that their appeal to the judge was therefore incompetent and anomalous.” That was a case, however, in which the defendants had no contention inter se, but on the contrary a common interest against the plaintiff, who was the respondent in the appeal.
The other case referred to in the hearing was Lachman Singh v. Mohan . There the Munsif had made a decree which on the face of it showed nothing against the defendants, and the question was whether under these circumstances the defendants could appeal to the Judge, seeing that as the Munsif's decree which, so far as it decreed anything, did so in favour of the defendants, viz., by dismissing the suit against them, and therefore the Munsif's decree could not be said to be one by which the defendants were aggrieved. The majority of the Court were of a different opinion and disallowed the contention. I held that such a view of the provisions of the Code as was maintained on behalf of the plaintiff was too narrow, and that we may look, not only into the judgment, but in the pleadings, to see what the decree really meant, and that we ought not to confound the Munsif's decretal order with the decree itself as actually and formally made, and I went on to remark:— “In the present case it is plain that the decretal order is not self-explanatory, and if we had nothing else to go upon it would be necessary, in order to its being intelligible, to read it with the judgment; and as to a decree itself in its complete form, I hold the opinion very strongly that, where it is ambiguous or imperfect as to any essential particular, it may be read with the judgment and the record.” I also referred to s. 206 of the Code of Procedure, where it is declared that “the decree must agree with the judgment,” and therefore arguing that any defect or ambiguity in the decree could not be seen without reference to the judgment. I then pointed out that the Munsif's decree in that case showed plainly that it was one of which the defendants had reason to complain as being materially unfavorable to them. They had pleaded against the plaintiff's title, but the Munsif's decree as actually prepared contained a full recognition of the plaintiff's title as against the defendants, and that in fact the real meaning of the decree was that the defendants' right, if any, was not as proprietors as they had alleged, but as being in the inferior and subordinate position of lessees, and any claim which the plaintiff had against these defendants, as such lessees, could only be entertained in another suit. I therefore held that this was “not only a finding pro tanto against the defendants, but it is one which may injuriously affect any future proceedings on their part for the vindication of the proprietary rights they claim, for in any suit they might hereafter bring they might, according to the rulings of this Court and the Privy Council, probably be met by the “plea of res judicata” although with what effect could not be anticipated. In that case too, however, it must be remarked that the appeal was by two defendants who had a common interest, and that they and the plaintiff were fully represented in the proceedings, the plaintiff being respondent in the appeal to the Judge.
In the present case the circumstances are different: the plaintiff's suit against the defendants has been dismissed, and he is not a party to the appeal before us. The appeal is by the defendants inter se, that is, the matter in issue being the authenticity and validity of a deed of conditional sale purporting to have been executed by one defendant as vendor in favour of the other defendant as vendee. The question, besides, appears to have been considered by both the lower Courts who found that the deed of sale had not been proved. An appeal therefore on such a question by one defendant against another is wholly inadmissble, and as to the provisions of the Code of Procedure, I entirely concur in the opinion of my colleagues. I also agree with them that the finding of the lower Courts, although not admitting of an appeal between the two defendants, would not bar a suit by one against another for the establishment of the validity of the sale-deed.
I therefore agree in answering the question referred to us in the negative.
Pearson, J. (Oldfield, J., and Straight, J., concurring):— Chapter XLI of the Procedure Code treats of appeals from original decrees, and Chapter XLII of appeals from appellate decrees. It is provided that an appeal shall be from such decrees generally. It is not expressly said by whom, an appeal may be preferred; but it may reasonably be assumed that any party to the suit in which a decree is passed may, if dissatisfied with it, appeal from it. S. 577 refers to the judgment in appeal from original decrees, and enacts that it may be for confirming, varying, or reversing “the decree against which the appeal is made,” and applies under s. 587 to judgments in appeal from appellate decrees. Hence also it is inferrable that the parties who are allowed to appeal are those who may desire that a decree should be varied or reversed.
In the case before us the plaintiff's suit for pre-emption was dismissed by the lower Courts; and the defendants-appellants here are not desirous that the decree dismissing the suit should be varied or reversed. What they complain of is a finding in the judgments of the lower Courts as to the validity of a sale in respect of which the claim to pre-emption was advanced. The appellate Court could not in disposing of the appeal vary or reverse the decree dismissing the suit so as to make a decree declaratory of the validity of the gale in question. I conclude therefore that neither was the appeal preferred to the lower appellate Court nor is the appeal preferred to this Court admissible.
The finding which is the subject of the appeal is, I conceive, a finding between the plaintiff and the defendants in the suit, and not between the defendant-vendor and the defendants-vendees, who are not now litigating, and would not bar an adjudication of the matter in issue between them in a suit brought by the latter for the establishment of the validity of the sale-deed.
I would accordingly answer the question referred to us in the negative.