P L D 1954 Lahore 278 (PLP)

KAIKAUS, J.‑The suit out of which the present reference arises was filed by Mgt. Amtul Hafiz impeaching two alienations of her property. The first alienation is a mortgage of 99 kanals 13 marlas of land in village Tohar, district Gujranwala for a sum of Rs. 2,000 in favour of Ghulam Muhammad, Fateh Muhammad and Muhammad Hussain sons of Allah Dad by a registered deed, dated the 11th December 1937. The mortgage was executed by Mst. Amtul Hafiz but she alleges that she was a minor on that date and, therefore, the deed is void ab initio. The second alienation is a sale of the same land to the defendant appellants on the 15th December 1939. The sale was effected by Muhammad Sharif, the father‑in‑law of Mst. Amtul Hafiz in pursuance of a power of attorney executed in his favour by Mst. Amtul Hafiz on the 9th February 1938. The plea with respect to this alienation is that she bad not authorised Muhammad Sharif to sell the land and in any case the power of attorney is procured by fraud and undue influence and, therefore. is not binding on the plaintiff. The case of the plaintiff generally is that when she was married to her husband in 1935 both she and her husband were minors and that Muhammad Sharif, her father- in‑law used to look after her land. He had taken advantage of his position and had got these two alienations effected for his own benefit. The trial Court found that the plaintiff was a minor on the 11th December 1937 and that the power of attorney executed on the 9th February 1938 was the result of undue in9uence and fraud. On these findings it decreed the suit. On appeal the learned District judge upheld the finding as to minority and declared the mortgage to be void. He did not find fraud or undue influence proved and held the power of attorney to be valid. However he found that only the benefit of Rs. 2,100 out of the total consideration for the sale had gone to the plaintiff and he held that the plaintiff was entitled to get back the land on payment of this sum of Rs. 2,

100. The plaintiff did not appeal against this decree while the defendants filed a second appeal. When the second appeal came up for hearing the respondent `sought to argue that the finding of the learned District judge with respect to the validity of the power of attorney was incorrect This finding had been made the basis of the award of Rs. 1,500 as a condition precedent to the delivery of possession to the plaintiff and the appellant objected that as no appeal had been filed by the respondent, the basis of the decree awarded by the Court could not be attacked. There were two previous decisions of this Court, i.e., Kishan Kishore v. Din Muhammad (A I R 1929 Lah. 684,) and Raja Ram v. Lehna (A I R 1942 Lah. 87.) in which it‑ had been held that under Order 41 rule 22 a respondent could not take an objection which instead of being a support would be a challenge to the decree as passed, On account of the importance of the question and the existence of Division Bench judgments on the point the matter was referred to a Full Bench. The following two questions were farmed:- (1) Whether under Order 41, rule 22, C. P. C. it is open to a plaintiff‑respondent, who has neither appealed from nor taken any cross‑objections to a partial decree passed against him, to urge in opposition to the appeal of the defendant a contention which if accepted by the trial Court would have necessitated a total decree in the suit ? (2) If the first question be found against the respondent can she still take up the ground of the invalidity of the power of attorney ? I have corrected an obvious mistake in the first question by substituting the words 'total decree in the suit' for the words 'total dismissal of the suit'. On the question whether a respondent, who has not appealed against a portion of the decree, can, without filing cross‑objections, take such a ground in support of the decree that if it is accepted the decree as a whole would be wrong, there was a divergence of opinion in pre‑partition India which has continued. In favour of the position taken up by the appellant may be cited Secretary of State v. Chimanlal Jamnadas and others (A I R 1942 Bom. 161.), Mukand Dharman Bhoir v. Shantaram Rajo Bhoir and others (A I R 1927 Bom. 128.). Muhammad Hussain v. Islamlya Madarasa (A I R 1935 Nag. 243.), Hardi Ram Pandey v. Kali Parsad Singh (A I R 1949 Pat. 79.), P. L. S. A. R. S. Chettyar Firm v. R. M. P. Chettyar Firm and others (A I R 1933 Rang. 120.), Namdeo Shankar Patil v. Ramrao Maroti Patil (A I R 1933 Nag. 310.), Kesla Mal Nand Kishore v. Cooper Allen & Co. Cawnpore (A I R 1936 All. 717.), Rangem Lal and another v. Jhandu. (I L R 34 All. 32 (F. B.)), Kishan Kishore v. Din Muhammad and others (A I R 1929 Lah, 634.), Raja Ram v Lehna and another (A I R 1942 Lah. 87.), Sri Ranga Thathaehariar v. Srinivasa Thathachariar (A I R 1927 Mad. 801.), Subramania Guru Kal v. Abhinava Pocrataptiya A. Srinivasa Rao Sahib (A I R 1940 Mad. 617.) and Gangama Vaik v. N. L. V. R. Veerappa Chatti (A I R 1931 Mad. 513.), In favour of the respondent there is a Full Bench judgment of the Madras High Court reported as Gadden Chinna Venkata Rao and others v. Koralla Satyanarayatsamurthy and another (A I R 1943 Mad. 698.) and Gokul Krishna Banerji and another v. Secretary of State (A I R 1932 Pat. 134.). Order 41 rule 22 C. P. C. runs :‑ " (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. (2) * * * * * * * * * * * * * * * * * * * * The words of the rule would seem to be clearly in favour of the respondent. They refer to any ground decided against him by the lower Court and they expressly refer to the fact that he is entitled to take such ground although he may not have appealed against any part of the decree. A divergence of opinion has occurred, however due to the different interpretation put upon the expression 'support the decree'. In order to understand the line of reasoning adopted in the cases relied upon by the appellant, we will refer to Sri Ranga Thathachariar v. Srinivasa Thathachariar (A I R 1927 Mad, 801,) which had been followed in a number of cases before it was overruled by a Full Bench in Gadden Chinna Venkate Rao & others v. Koralla Satyanaraynamurthy and another, (supra). In Sri Ranga Thatha chariar v. Srinivasa Thathachariar (supra) the facts were that a suit for partition had been filed on behalf of a minor member of a joint Hindu family. A preliminary decree for partition had been passed in 1912 and subsequently a final decree was passed in favour of the plaintiff which included an amount due from the defendant who was the karta of the family on the taking of accounts. One of the questions for determination was the date from which severance of status of the joint family had taken effect. The plaintiff pleaded that it was from the date of the plaint but the trial Court bad accepted the defendant's plea and held that severance took place on the date of the preliminary decree. The importance of this date was due to the fact that after severance of status the liability of the karta to account would be of a different character. The trial Court made a decree on the basis that severance took place on the date of the preliminary decree. While granting this decree the Court overruled certain objections taken by the defendant which, if accepted, would have affected‑the decree that was passed. On appeal by the plaintiff the learned judges of the High Court came to the conclusion that the severance of status took place on the presentation of the plaint. At this the respondent wanted to argue that the, amount awarded to plaintiff was still not less than the proper amount: because the findings of the trial Court on the other objections raised by him were wrong. Those findings (though the judgment does not state what they were) had been made the basis of the trial Court's decree. The learned judges refused to allow the respondent to raise this objection before them and the reasons on which they acted would appear from the following passage in their judgment :‑ "On behalf of the respondent it has now been sought to be argued that he would be entitled under the provisions of Rule 22, Order 41, C P. C. to support the decree given by the lower Court for the particular amount even on grounds which may relate to the portion of the adjudication or decision by the lower Court not appealed against or in respect of which no objections have been filed by the respondent. It is contended that the expression "support the decree" in Rule 22 merely refers to the amount for which the decree is passed and that because the expression "decree" is used in that rule, it authorises or enables the respondent to make out a case for decree for that amount by questioning some adjudication by the lower Court with regard to rights found against the party by the lower Court and in respect of which no appeal or objection has been filed. For this purpose the learned Vakil for the respondent has referred to two cases decided by the Chief Court of the Punjab: Muhammad Ali v. Parma Nand (125 P L R 1918) and Hardas Singh v. Mohan Kaur (113 P L R 1910.) In the former case what was really held was that even though one item in an account may be found by the Court of appeal against the respondent, and on that footing the amount for which a decree had been granted by the lower Court may have to be reduced, still the decree might be supported by showing that in respect of some other item the Court below made a mistake. But when the relief granted depends upon the adjudication by the lower Court with respect to rights or causes of action, it is inconceivable that such decision or adjudication should be sought to be attacked in the appellate Court without any notice whatever to the other party. Though the word 'decree' has been used in Rule 22, it is clear that what the rule contemplates really is the decision by the Court below and merely enables the decision arrived at by the lower Court to be supported on grounds other than those on which the lower Court proceeded. We are satisfied that under that rule it is not open to a respondent to have adjudicated by the appellate Court rights or causes of action which have been decided against him in the Court below and in respect of which he has filed no appeal or memorandum of objections." (p. 304). It will be observed from the above passage that the following two reasons have been advanced ;‑ (1) 'Decree' as used in rule 22 means decision, and only a ground which can be another basis for the decision given can be urged. (2) 'Rights' or 'causes of action' adjudicated upon cannot be reopened without appeal or cross‑objection. In some cases in which Sri Ranga Thathachariar v. Srinivasa Thathachariar (supra) was followed (for instance Kishan Kishore v. Din Muhammad and others (supra) the argument employed was that the words `support the decree cannot justify the taking of a ground which does not support the decree but attacks it as incor rect. This in fact is the most important argument advanced by the appellant. Before I proceed to comment upon the view taken in Sri Ranga Thathachariar v. Srinivasa Thathachariar, (supra) I would refer to the facts and reasoning in Gaddeft Chinna Venkata Rao v. Koralla Satyanarayanamurthy (supra) which overruled it. In that case a suit was brought for Rs. 1,450 to recover money due on a pronote dated the 27th January 1937 for Rs. 1,

300. The defendant had previously executed a pronote for Rs. 3,000 on the 12th December 1934 on the basis of which Rs. 4,359 were due on the 27th January 1937, a payment of Rs. 3,059 had been made in cash and for the balance of Rs. 1,300 a pronote bad been ex ecuted. On behalf of the defendant it was pleaded that in fact the original debt was one for Rs. 2,000 only which was secured by a pronote of 1925, and that more than double the amount had in fact been paid as Rs. 1,900 had been paid before the pronote of 1934 was executed. It was contended that the entire debt had been discharged on account of the provisions of the Madras Agricultural Relief Act which disallowed a suit for more than double the amount originally advanced. The plain tiffs stated, on the other hand that the pronote of 1934 had been executed for a cash advance. The trial Court found that Rs. 3,000 mentioned in the pronote of 1934 was in fact a cash advance but it awarded a decree for Rs. 274‑11‑3 only by scaling down the debt regarding Rs. 3,059 as an open payment (not towards interest). The plaintiffs appealed and urged that the payment of Rs. 3,059 should be adjusted first towards interest and should not be regarded as an open payment. The defendants filed no appeal but challenged the finding of the trial Court that the pronote of 1934 was for a cash advance. The first appellate Court refused to allow the respondents to take this plea on the authority of Sri Ranga Thathachariar v. Srinivasa Thathachariar, (supra) as this plea, if accepted, would have entailed the total dismissal of the suit. The defendants filed a second appeal to the High Court and argued that the first Appellate Court was wrong in refusing to allow the defendants to agitate the question whether the pronote of 1934 was for a cash advance. The appeal was heard by Wadsrortb and Patanjali Sastri JJ. who found the proposition stated in Sri Ranga Thathachariar v Srinivasa Thathachariar (supra) to be too wide and referred the case to a Full Bench. Before the Full Bench, reliance was placed on behalf of the plaintiffs, in addition to Sri Ranga Thathachariar v. Srinivasa Thatha‑ chariar on the observations of Madhavan Nair J. in Gangama Naik v. N. L. V. R. Veerappa Chatti, where the learned judge had said :‑ "The words used are "support the decree" and not "attack the decree". A contention that a ground on which the lower Court has decided against the respondent should have been decided in his favour and therefore the lower Court should not have passed the decree under appeal is in my opinion not a ground which supports the decree but is one which attacks the decree and therefore cannot be urged by the respondent under this: order. In support of the lower Court's decree the only grounds: decided against him by the lower Court which can be urged by a respondent without filing an appeal against the lower Court's decree are those which will support the decree of the lower Court and not render that decree invalid. If the contention of the respondent is accepted, then it means that though he has not filed an appeal or a memo of objections, be is to be allowed to have the benefit of the same indirectly which I think is not permissible under the provisions of Order 41, rule 22, C. P. C. If the Court disagrees with the opinion of the lower Court on the point in question, how can the Court doing so allow the lower Court s decree :o stand without setting it aside ? Leach C. J., who wrote the leading judgment, disposed of these observations of Nair J. with these words :‑ "This argument is based on an observation of Madhavan Nair J., in Gangama Naik v. N. L. V. R. Veerappa Chetti, where the learned judge followed Sri Ranga Thathachariar v. Srinivasa Thathachariar alias Srinivasa Raghavachariar (I L R 50 Mad. 866.) In wanting to re‑open this question the defendants are not really attacking the decree. They cannot do so, because they failed to file in the plaintiffs appeal to the Subordinate Court cross objections to the finding that they were liable in the sum of Rs. 274‑11‑

4. So far as they are concerned, that decree must stand and they admit it. What they desire to do, however, is, to demonstrate that the plaintiffs were not entitled to more than Rs. 274‑11‑4 by showing that on a proper appreciation of the evidence they ought not to have got anything at all. I can see nothing in Order 41, rule 22. to prohibit them from doing so' Stress has been laid by the plaintiffs on the following passage in the judgment of Madhavan Nair J, in Gangama Nnik v. N. L. V. R. Veerappa Chetti: 'If the Court disagrees with the opinion of the lower Court on the point in question, how can the Court doing so allow the lower Courts' decree to stand without setting it aside? With great respect, I consider that this is not the position. The Court cannot set the decree aside, because it has become final, but it is open to the defendants to repeal the plaintiff's case for an increased decree by showing that they were not really entitled to a decree at all. Krishnaswami Ayyanger J. added further reasons which will appear from the following passage :‑ "Let us take a case where a plaintiff sues for a debt of say Rs. 1,000 and the suit is contested by the defendant on two grounds, (1) discharge, and (2) limitation. Let us assume the trial Court dismisses the suit on the ground of limitation, while negativing the plea of discharge. The plaintiff in an appeal from that decree may be able to satisfy the appellate Court that the decision on the point of limitation is incorrect. In such an eventuality. Order 41 rule 22 enables the defendant to sustain the decree by making good the plea of discharge found against by the Court blow. Let us, however, take a more complex case where the claim and defence are of the same character as in the last illustration but the trial Court gives a decree to the plaintiff for Rs. 600 only disallowing the claim for the balance on the ground of limitation. In essence the decree, as already explained bears a double character. There is a decree for the plaintiff for Rs. 600 and a decree for the defendant in respect of the sum of Rs. 400 disallowed by the Court, because to that extent the decision was in his favour. When the matter is taken before the appellate Court by an appeal by the plaintiff in which, let us say, he asks for a decree for the balance of Rs. 400 disallowed by the Court below it is open to the defendant respondent‑that is what it seems to me the rule says‑to support the disallowance of the claim to the extent of Rs. 400 by making good his plea of discharge which will avail him to that extent and no more. In doing so, he is only relying on a ground decided against him in the Court below, and this is precisely what the rule permits. In other words, where there is decree for a part only of a claim, it means that it is partly in favour of the plaintiff and partly in favour of the defendant and when the respondent is given liberty by the rule to support, the decree it is to enable him to support that part of .the decree which is really in his favour. In doing so, he is not attacking the decree in so far as it is in favour of the plaintiff nor is he supporting it: for, obviously, he is not interested in supporting it at all. In fact, he is only attempting to prevent the plaintiff from increasing the burden of the liability beyond the limit fixed by the decree appealed against. The word "decree" in this rule may be taken to mean decision as held in Sri Raga Thathachariar v. Srinivasa Thathachariar alias Srinivasa Raghavachariar but that does not solve the difficulty. What is necessary to bear in mind is that the principle which is applicable to a simple case where a claim is wholly decreed or wholly dismissed, is equally applicable to a case where the claim is allowed in part and dismissed as regards the rest. In the latter class of cases namely, where there is a decree for a part only of a larger claim, the decision is to be understood as comprising a decree in favour of the respondent to the extent to which the Court below had disallowed the claim of the appellant. So understanding it there is no difficulty whatever. It is by an omission to see clearly this double aspect when there is a decree for a part only of a claim, that errors are likely to occur. (pp 700‑701). I would respectfully agree with the Full Bench that the decree with which the appellate Court is concerned is only that part of the decree which is in favour of the respondent. The words 'support the decree' have a reference only to the portion of the decree in favour of the respondent and it is quite a convenient and correct way of looking at the decree that it consists of two decrees, one in favour of the appellant and the other in favour of the respondent so that the respondent is entitled to take any ground on which the portion of the decree which is in his favour can be supported. If, for instance, a partial decree for money in favour of the plaintiff has been passed and the plaintiff alone files an appeal, the defendant may show that in fact the suit suffered from a technical defect and was liable to be dismissed on that ground. The mere fact that the plea which he puts forward would show that the decree errs in favour of the appellant would not debar him' from raising the plea. If by decision be meant the adjudication of right on which a decision is based, we would not accept that `decree in this rule means decision. As pointed out by Srinavas Iyanger J. in cases of full decree it cannot be urged that the respondent cannot support it on an alternative cause of action. The respondent has in such a case no right to file an appeal or a cross‑objection and if the relief claimed in the suit was based on an alternative cause of action the respondent cannot be prevented from supporting it in appeal on the alternative ground. The interpretation of the word `decree' in this rule must, however, remain the same whether there be a full or a partial decree in favour of the respondent. The point may be illustrated by reference to a suit for rent and in the alternative for damages for use and occupation. The trial Court grants a full decree to the plaintiff finding that for the period in dispute there was a contract of tenancy between the parties. In appeal the respondent wants to support the decree on the ground that the defendant was a trespasser and the plaintiff was entitled to damages from him the amount of which is not less than the amount of rent decreed. Can he not do so ? But this is not a support to the decision that is the basis of the decree. The above illustration is also a reply to the argument with respect to different causes of action, for the cause of action with respect to rent is a contract between the parties and that with respect to damages for use or occupation is illegal dispossession. It is not necessary to refer to the facts of the other cases cited by the parties as we have already considered the arguments contained in them. I have, however, to refer to Anath Nath Biswas and others v. Dwarka Nath Chakravarti and others (A I R 1939 P C 36.) which is relied upon by the appellant as a case in his favour. In that case an estate had been sold at a revenue sale on account of non‑payment of land revenue. Some of the co‑sharers in that estate filed three suits challenging the sales. The suits were based on two grounds The first ground was that the sales were without jurisdiction and void. The second was that one of the co‑sharers had been guilty of fraud and that the nominal bidder who purchased at the auction had really purchased the property only for the benefit of that co sharer and, that the plaintiffs were in law entitled that their shares be transferred to them by the purchaser on payment of a pro portionate price. The first contention was decided against the plaintiffs by the learned Subordinate judge who tried the suits. He found, however, that the second contention was well founded and he granted the plaintiffs decrees for transfer to them of their shares. The defendants appealed to the High Court while the plaintiffs filed neither any appeal nor cross‑objections against the disallowance of the first relief. The High Court found that no fraud by the co-sharer was proved and, therefore, the plaintiffs were not entitled to the relief granted. The respon dent attempted to urge before the High Court that the learned Subordinate Judge had erred in refusing to set aside the sales as void but this point was not allowed to be argued. Before their Lordships of the Privy Council a grievance was made of the refusal of the High Court to allow the question to be argued. Their Lordships said :‑ "It remains only to consider whether the High Court were right in ruling that the appellants should not be heard to maintain that the trial Judge was wrong in refusing to set aside the revenue sale on the grounds of want of jurisdiction or irregularity as no cross‑objections under Order 41, rule 22 of the Code had been filed. This is a claim to relief founded upon different grounds from those upon which the trial Court's decree proceed ed, and upon principles different from those which underlie the relief given by the decree. In their Lordships' view the case came clearly within tile condition imposed by the concluding words of sub‑rule (1) of rule 22, " provided he has filed such objections in the Appellate Court, etc., etc." It was contended however that' the language of rule 33 of the same order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal an assumption to which they do not commit themselves‑they are clearly of opinion that rule 33 could not rightly be used in the present case so as to " abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the Court below." It will be observed that their Lordships were only considering the question whether relief on the basis of the ground decided against the plaintiffs could be granted in appeal without a cross‑objection and they held that without cross‑objection such relief could not be granted. The case does not deal with the point before us. It may be argued, however, that if the decree of the learned Subordinate judge could be supported on the ground decided against the plaintiffs there is no reason why their Lordships should not have maintained it on that ground. It should be noted, however, that the decree in that case was not one which could be supported on the ground taken in appeal. The decree as passed was that the defendant should convey to the plaintiffs proportionate shares of the property he purchased on payment of certain money. The Appellate Court could not maintain such a decree on the ground that the sale in favour of the defendant was void. If it reached that conclusion the result would be that the defendant " himself would not be an owner of the property and the right of the plaintiff to force him to transfer the property to them would not arise at all. In order to support a decree the respondent can only take a ground which if accepted will result in the decree passed and not which will lead to different kind of a decree altogether. In such a case it is only if the appellate Court uses its powers, under Orders 41 rule 33 and passes a decree in accordance with the ground urged that the respondent can succeed. We have also to refer to the two cases of our own High Court with which we do not agree. In Kishan gishore v. Din Muhammad and others (supra) the plaintiff filed a suit for a decla ration that a well and the land surrounding it were owned by him. The defendants contended that well and the place a round it had been used for saying prayers, and were waqf. The trial Court held that the well and the land belonged to the plaintiff. It held at the same time that the property had been used for saying prayers and that it was waqf by user. A decree was passed declaring that the property in y dispute belonged to the plaintiff and was waqf by user. The decree was inconsistent in itself for property which is waqf belongs to the Almighty and cannot be owned but the intention is obvious and that is that while title of the plaintiff was admitted the right of the defendant to use it for prayers was " recognised. The plaintiff alone appealed against the decree. The respondents wanted to contest in appeal the finding of the trial Court that the property in dispute was owned by the plaintiff but were not allowed to do so. The reason for this will appear from the following sentence in the judgment :‑ " It is to be observed that what the respondents seek to do is not to support the decree of the Court below but to attack it without filing cross. objections." With all respect I do not agree with this conclusion. The respon dents were not attacking the decree for they could not do so, having not filed any appeal or cross‑objections. They were trying to support that part of the decree which was in their favour viz. that they had a right to use the place for saying prayers. In supporting the decree they were putting forward a plea that they had in fact a higher right than that granted to them by the decree, and the fact that the right on which they based their claim was not consistent with the trial Court's decree could not prevent them from doing so. There is no doubt that the decree in the case was a peculiar one being self‑contradictory and ordinarily such a decree should not be allowed to stand. But instead of " varying the decree in favour of the appellant on a technical ground it would have been proper for the Court to exercise its powers under Order 41. rule 33 and to set aside even the un-appealed portion of the decree. There is ample power in a Court under the above‑mentioned rule to set aside the whole decree, though appeal relates to a part and though the party in whose favour the appellate Court interferes has not filed any appeal or cross‑objection. We refer in this connection to a Full Bench case of the Madras High Court in S. M. S. Subramaniam Chettiar and others v. Sinnammal and others (A I R 1942 Lah. 87,) simply follows A I R 1929 Lah. 634 and does not contain any discussion on the point. I am conscious of the fact that the interpretation we are placing on Order 41 rule 22 will lead to an inconsistency between the decree of the lower Court and the grounds of decision of the appellate Court. In some cases this discrepancy may assume a glaring form as where the decree of the lower Court consists of a declaration of the plaintiff's rights and the judgment of the appellate Court is based on the non‑existence of that right A files a suit for a declaration that he is the legitimate son of B and for possession of certain immovable property belonging to B. He is granted a declaration of legitimacy but the suit is dismissed as regards part of the immovable property on account of adverse possession. Plaintiff appeals and the defendant urges that plaintiff is not the son of B at all. If the appellate Court gives effect to this plea there will be between the parties a decree of the trial Court that A is legitimate son of B and, at the same time, a judgment of the appellate Court that he is not the son of B. Yet after fully considering the question we are of opinion that this result cannot be avoided. We cannot, in this respect, make any distinction between cases where an adjudication is contained in a decree and cases where it is the essential basis for the decree. If we accept that an un-appealed adjudication contained expressly in a decree creates a res judicata, there can be no valid reason for not regarding that adjudication as res judicata which though not expressly mentioned in a decree is its essential basis. To this extent, however, we cannot go for it would result in preventing the taking of any plea the acceptance of which by the lower Court would have resulted in a better decree in favour of the respondent. The plain words of the rule militate against such an interpretation and it would be unduly harsh on the respondent. The words in the rule "though he may not have appealed against any part off the decree" would be altogether without effect if the respondent is not allowed to take a ground which is inconsistent with the decree. It should be remembered that we are considering a provision that prevents a party from taking a plea and provisions containing such bars should be strictly construed. While the result that the decree of the lower Court would be in conflict with the judgment of the appellate Court and that there would be a decree between the parties the basis of which is in direct conflict with a subsisting decree between the parties is not desirable, it need not surprise us for we are already putting up with such a result in another connection. A Full Bench of this Court decided in Mst. Lachhmi v. Mst. Bhulli (A I R 1927 Lah. 289.) that if two suits are tried together and decrees passed in both relating to the same subject matter the fact that with respect to one of the decrees no appeal has been filed does not debar the Court from deciding the appeal filed in the other case. The result of the appeal in that case would be the bringing into existence of a decree which was in direct conflict with a decree already subsisting between the parties. If an inter‑parties decree in another suit can be disregarded the existence of a partial decree in the same suit cannot be a consideration which overrides all others. I would answer the first question referred to us in the affirma tive. The second question does not arise. RAHMAN, J.‑I agree that the first question referred to the Full Bench should be answered in the affirmative and that consequently, the second question does not arise. I find myself in accord generally with the reasoning of my learned brother, Kaikaus in reaching this conclusion. It is obvious that the construction of Order 41 rule 22 C. P. C. should be such as would cover the case of a full decree as well as of a partial decree. In terms, this rule applies to first appeals but by virtue of Order 42 rule 1 C. P. C., the same provision would govern second appeals, "so far as may be". The right of the respondent to agitate a decided against him by the Court or Court below, under this rule is subject only to the qualification that the ground would be available to "support the decree" i.e., only as a weapon of defence and not of offence, in order to maintain the statue qua ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent is not increased beyond what is imposed by the lower Courts' decree. The expression "support the decree" occurring in the rule, is somewhat equivocal in content but I am inclined in favour of the wider interpretation of this expression adopted by the Full Bench of the Madras High Court in Gadden Chinna Venkata Rao v. Koralla Satyanarayanamurthy in preference to the narrower view that prevailed with the learned judges who decided Siri Ranga Thathachariar v. Srinivasa Thathachariar. If the rule is to be hedged round with any other limitations, justifica tion for that course will have to be found in some other provision or rule of law, rather than the language of the rule itself. M. KHURSHID ZAMAN, J.‑I agree.