P L D 1961 Dacca 344 (PLP)

2. The judgment‑debtor opposite‑party No. 1 held under the predecessor‑in‑interest of petitioner No. 1 a Karsha tenancy at an annual rental of 32 Kathis of paddy or its money equivalent assessed at Rs. 32 in the registered Kabuliyat executed by the former. In respect of the arrears of the said holding for the year, 1354 B. S., the landlord instituted R. S. No. 522 of 1951 claiming the money equivalent of the said produce rental at the prevailing market rate and obtained a decree against which the defendant i.e, the judgment‑debtor opposite‑party No. 1 here, preferred an appeal, being R. A. No. 79 of 1952. During the pendency of the said suit, the landlord brought another suit, i.e., R. S. No. 702 of 1952, for, arrears for the period 1355‑58 B. S. on the same basis as the previous one. This too resulted in a decree and eventually led to R. A. No. 115 of 1952 preferred by the tenant. In due course both the appeals were heard together and disposed of by one common judgment on 27‑2‑

53. The appeals were dismissed and the decrees rendered by the trial Court were affirmed. In the meantime the decree obtained in R. S. No. 702/ 1952 had been put into execution in R. Ex. Case No. 700 of 1952, which was, how ever, stayed at the instance of the judgment‑debtor‑opposite‑party No.

1. He also preferred a second appeal, being S. A. No. 699 of 1953 before this Court against the judgment and decree in the aforesaid R. A. No. 79 of 1952 which, after an ex parse hearing on 29‑7‑57 was allowed and the decree of the Court below modified to the effect that the landlord would be entitled to get the rent at Rs. 32 per annum. In the meantime the above‑mentioned order staying R. Ex. Case No. 700 of 1952 was vacated on 1‑12‑53 and thereafter the defaulting holding was sold in auction and purchased by the decree‑holder on 20‑3‑

54. After confirmation of this sale in due course on 20‑4‑54, the decree‑holder opposite‑party took delivery of possession on 16‑7‑54‑and after possessing the property in khas for sometime settled the same with petitioners Nos. 1 and 2 and opposite‑parties Nos. 2 to 4 in borga rights. This settlement was made by petitioner No.l as his predecessor‑in -interest, i.e., the original decree‑holder, had died in the meantime. On the other hand it‑appears that after dispossession of the above mentioned second appeal the tenant opposite‑party No. 1 filed in the Court of first instance an application under section 144/.151 of the Code of Civil Procedure for restitution of the holding sold in R. Ex. Case No. 703 of 1952 arising out of R. S. No. 702 of 1952. This was registered as Miscellaneous Case No. 104 of 1958 and allowed ex pane on 12‑7‑58, thereby entitling the tenant petitioner No. 1 to restoration of the auction sold property in question. On the strength of that order he actually took delivery of possession on 2‑9‑

58. The petitioners thus coming to know of the proceed ings for restoration filed Miscellaneous Case No. 163 of 1958 under Order XLVII, rule 1 of the Civil Procedure Code and succeeded thereby in having the said ex parte order of restoration passed in Miscellaneous Case No. 104 of 958 set aside on contest on 12‑7‑

58. This was taken in appeal by the tenant opposite‑party in Miscellaneous Appeal No. 248 of 1959 which was eventually heard by the learned Subordinate judge mentioned above and disposed of by his order dated 16‑1‑

60. He held that "by the judgment of the second appeal, Exh. A, the judgment of the (first) Appellate Court in respect of both appeals (R. A. S: Nos. 79 and 115 of 952) relating to both suits (R. S. No. 522 of 1951 and R. S. No. 702 of 1952) was modified" and accordingly allowed the appeal, reversed the order of the learned Munsif and dismissed Case (No. 160 of 1958) under Order XLVII, rule I of the Lode of Civil procedure.

3. Mr. M. R. R. Guha, Advocate, appearing on behalf of the petitioners, has contended that the learned Subordinate Judge was wrong in holding that the decree in R. A. No. 115 of 1952 also stood modified by the decision in the second appeal arising out of R. A. No. 79 of 1952 inasmuch as the decree in R. S. No. 702 of 1952 was affirmed in R. A. No. 115 of 1952 and there was no second appeal to this Court against the decision in the latter. In other words the decision in the second appeal in respect of R. A. No. 79 of 1952 arising out of R. S. No. 522 of 1951 cannot, according to him, affect i.e., modify the decree passed in R. A. No. 115 of 1952 arising out of R. S. No. 702 of 1152 even though R. A. Nos. 79 and 1 15 of 1952 had been heard analogously and disposed of by one common judgment. On the other hand Mr M.L Acharya Advocate, besides opposing the above contention urged by Mr. Guha has also raised certain legal objections in the nature of pleas in bar, which I propose to dispose of before I proceed to consider the said contention representing the main point at issues in this case.

4. Thus the first objection taken by Mr. Aclranya is that the decree in R. S. No. 702 of 1952 having been passed in contraven tion of section 10 of the Code of Civil Procedure is legally bad and inoperative in that the said suit was by reason of the pendency of the earlier suit i.e., R. S. No. 522 of 1951. involving the identical matter in issue, to wit the rate of rent, liable to be stayed under the said section. In my opinion, this argument is absolutely without any substance. In order to attract the operation of the principle embodied in section 10 ibid it is necessary that the entire subject matter of the two suits should be the same. Where the subject- matter of the suits concerned is not the same, as in the present instance by reason of the periods to which the two suits related being different, the section will not apply merely because the main issue in both the suits is common. Moreover section 10 merely enacts a rule of procedure pure and simple and as such as a decree passed contrary thereto is not a nullity and cannot be challenged or disregarded in execution proceedings.

5. The next point taken by the learned Advocate is that in view of the decision of this Court in S. A. No. 699 of 1953, finding the landlord entitled to get the rental at.Rs. 32 per annum; the disputed decree in R S. No. 702 allowing a different or rather a higher rate would come under the mischief of the principle of res judicata and could not as such be enforced as it was. I find it indeed difficult to see how the principle of res judicata can be invoked in respect of a question that is no longer awaiting decision in a pending suit but rests finally settled, no matter whether rightly or wrongly, after adjudication by a proper Court of competent jurisdiction and the result of such adjudication has thus become a decree. It appears rather fantastic to imagine that all previous decree, executed or unexecuted, will become infructuous and liable to be re‑opened or automatically stand modified simply because a subsequent suit relating to a later period but involving the self same point at issue has resulted irk decrees at a different rate or on a different basis. I cannot therefore see my way to uphold this contention as sound.

6. The third and last objection of a preliminary nature urged on behalf of the opposite‑party is that the application for review giving raise to this revision was itself incompetent. inasmuch as the provisions of order XLVII. rule 1 of the Code of Civil Procedure are not attracted by the facts and circumstances of the case. It is, however, seen that no such objection was raised before either of the two Courts below.

7. Whatever, that may be, I am of opinion, that the appli cation was maintainable on the ground of error apparent on the face of the record.

8. Let me now turn to the main point‑at‑issue in the case. As has already been made clear, the gist of the contention urged on behalf of the petitioners is that the above‑mentioned decision of this Court in second appeal arising out of R. A. No. 79 of 1952 where in the decree passed in R. S. No. 522 of 1951 was armed does not in any way affect the decree in R. S. No. 702 of 1952 as affirmed in R. A. No. 115 of 1952 against which no second appeal was preferred before this Court. Mr. Acharya's argument in answer to this appears to be that the decision in an appeal preferred against the decree in one out of a group of suits or appeals involv ing one common issue and heard analogously and disposed of by one common judgment will govern and affect the decree in the remaining suits or appeals forming the group as well, even though no appeals were preferred against the latter. I find myself unable to appreciate or accept this proposition. Decrees passed in different proceedings do not lose their separate entity and become preferred from them are heard together and‑disposed of by one single judgment for the sake of convenience. Hence the imprima ture of finality attaching to each individually must betaken to remain in tact unless and until that has been varied or reversed in an appeal taken against it specifically. In other words the appel late decision will operate and hold good only with respect to the particular decree or decrees actually appealed against and no more. In this connection reference may be made to two authorities, actually relied upon by Mr. Guha on behalf of the petitioners vie. Ashutosh Nandi and another v. Kundal Dasi and others (A I R 1929 Cal. 814) and Bomena Devara Naganna Naidu and another v. Ravi Venkatappayya and others (51 I A 301). In the first mentioned case it has been held "section 144 only applies where the decree is varied or reversed and it does not apply to a case where, as the result of a different suit, the title of a person derived by purchase under quite a different proceeding in execution of a decree which stands unreversed is questioned. The decree of an appellate Court in one suit cannot be held, to have the legal effect of annulling or altering ipso facto a decree made by a Subordinate Court, in another suit." As to the second case, the relevant facts with the proposition laid down by their Lordships of the Judicial Committee have been summed up as follows :‑ "A District Court, affirming a Revenue Court, dismissed suits by a Zamindar against tenants for the acceptance of pattas at asare or varam rates, it being held that certain cash rates had previously been agreed to. In 1908 the High Court reversed the District Judge, holding that the pattas tendered were proper. In 1914 the Privy Council set aside the decree of the High Court on the ground that the decision was one of fact and consequently could not be reversed upon a second appeal. Between 1908 and 1914 the Zamindars in further suits had recovered under decrees rent for later faslis upon the basis of the decision of the High Court. In the present suits the tenants sued in 1916 for repay ment of the amount by which the rent so paid exceeded rent at the rate found applicable by the decree of the Revenue Court and the District Court :‑ Held, that the tenants were not entitled to recover the excess, since the decision of the Privy Council had neither reversed nor superseded the decree under which the rents had been paid." 9 It would thus appear that the learned Subordinate Judge was wrong in holding that the decision in S. A. No. 699 of 1958 modified the decree in R.S. No. 702 of 1952 and R. A. No. 115 of 1952 even though no appeal was preferred in respect of the same.

10. In the result, the rule is made absolute with costs. The order of learned Subordinate Judge complained of is set aside and that of the first instance restored. K. B. A. Rule made absolute.