Obla Subbier and Others vs Ramaswami Konar

Waller, J.—This litigation has been going on since 1918 and has passed through many stages and Courts. Briefly the facts are these: The

plaintiff sued on a mortgage and got a decree against the mortgagor and his minor son, then defendant 2 and present respondent. The latter in his

turn brought a suit, O.S. No. 50 of 1920, for a declaration that the decree was not binding on him as he had not been properly represented in the

suit. He pleaded further that the mortgage debt was not binding on him. The parties went to trial on those issues and the Court found on the one

that the plaintiff had not been properly represented in the suit, and on the other that the debt was binding on him. The result of course, was that his

suit was decreed and, if he had appealed, he would certainly have been told that there was nothing against which he could appeal. The next

development was that the mortgagee was granted a review of the decree in his first suit and allowed to implead the minor again, this time with a

proper guardian. When the suit came on for trial, the Court held that the binding character of the debt was res judicata by reason of the decision in

O.S. No. 50. of 1920. The District Judge came to the opposite conclusion and remanded the appeal for a finding on this issue. The finding was

that the debt was not binding and it was accepted by the District Judge, who set aside the decree against the respondent. On second appeal,

Jackson, J., upheld the decree of the District Judge both as to res judicata and on the merits.

I need not go through all the rulings cited on the question of res judicata. The general trend of authority is, I think, in favour of the view that, in a

case like this where the decree is in favour of the plaintiff, an adverse finding on an issue that in no way affects the decree, cannot be treated as res

judicata in a subsequent litigation between the parties which raises the same issue. Not only was there no necessity for the respondent to appeal,

there was also nothing that he could appeal against, the decree being in his favour. The case somewhat resembles Midnapur Zamindari Co. Ltd. v.

Naresh Narayan AIR 1922 P.C 241. A recent Privy Council ruling was referred to, which is reported in AIR 1932 50 (Privy Council) . That was

a case in which certain issues, not arising out of the pleadings, were raised and decided in the trial Court and in the first and second appellate

Courts. The Privy Council observed that, as the parties had chosen without protest to join issue on those points, they saw no reason why the

matters in dispute should not be res judicata between them. And they proceeded to deal with the questions on the merits. The head-note seems to

give the effect of the ruling rightly, which as stated by it, was that

the final decision of the Court of appeal upon those matters in dispute will be res judicata between the parties.

In other words, the matters in issue had been finally decided in that litigation and the decision would be a bar to their being put in issue again. In

this case, there has been no final decision, as there was not only no need for the respondent to appeal, but also nothing for him to appeal against. I

think that the decision of Jackson, J., is right and that the Letters Patent appeal should be dismissed with costs. As pointed out by the District

Judge seven years ago, the appellant is not without a remedy.

Pandalai, J.

I agree.