Sheo Sahai vs Chajju

Straight and Brodhurst, JJ.—The facts of this ease are very fully and clearly stated in the referring order of our brother Mahmood. The only argument addressed to us was based upon the sixth plea taken in the memorandum of appeal, namely, that the decree passed in favour of the defendant-appellant in suit No. 130 having become final by reason of no appeal being preferred from it, the matters in issue between him and the plaintiff No. 131, respondent before us and defendant in suit 130, had been heard and finally determined, and could not be again tried and determined in the appeal from the decree passed in suit 131. We are upon consideration constrained to hold that this contention is a sound one and must prevail. It is true that the first Court tried the two suits 130 and 131 together and disposed of them by a single judgment; but separate decrees were prepared, each of which was appealable by the party or parties aggrieved thereby, and, failing such appeal, finally settled the question between the plaintiff on the one side and the defendant on the other. In suit 130 as between the plaintiff Chajju and the defendant Sheo Sahai, the decree determined the issues as to the former''s preferential right over the latter, and the amount to be paid, and directed the period within which it was to be paid, in accordance with the provisions of Section 214 of the Civil Procedure Code. This decree still stands, and the Rs. 4,000 having been paid in by Chajju, the decree-holder, within the specified time, he has now become entitled to possession of the property. It was from this decree that Sheo Sahai, the respondent before us, should have appealed, if he desired to get rid of the decision in regard to the plaintiff Chajju''s right to pre-empt, and not having done so, it was not competent for the Judge in the appeal from the decree in suit 131 to re-open the questions between those two persons.

In so far, therefore, as his decision dwelt with those matters and his decree affects Chajju, this appeal must be and it is decreed with costs, and the respondent''s appeal to the Lower Appellate Court quoad Chajju dismissed with costs.