Holding

The Supreme Court held that the judgments in the appeals of suit nos. 99 and 100 do not operate as res judicata against the earlier final judgment in suit no. 98, and the appeal is dismissed.

Summary

The case involved four separate suits (nos. 97‑100) concerning lands in four villages, all filed under Section 49 of the U.P. Tenancy Act, 1939. A common judgment was delivered, after which the judgment in suit no. 98 attained finality, while appeals against the common judgment in suits 99 and 100 were allowed, resulting in the dismissal of those suits. The appellant contended that the later judgments (appeals of suits 99 and 100) should operate as res judicata in any subsequent proceeding relating to the lands of suit 98. The Supreme Court held that res judicata does not apply because the parties (defendants) differed and the properties were in different villages, and the later judgments did not affect the final judgment of suit 98. Consequently, the appeal was dismissed.

Issues considered

The judgment in the appeals of suit nos. 99 and 100 operates as res judicata in subsequent proceedings relating to the lands of suit no. 98.
Whether the principle of res judicata applies when plaintiffs are common but defendants differ and the subject‑matter lands are situated in different villages.
Whether Order 41 Rule 33 of the CPC confers a benefit on a non‑appealing party in this context.
Whether the later judgment of 5‑Sept‑1966 supersedes the earlier judgment of 20‑Mar‑1944 for suit no. 98.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. 144, s. Order 41 Rule 33
Limitation Acts. 5
U.P. Consolidation of Holdings Act, 1954s. 9

Subjects

res judicataCode of Civil ProcedureOrder 41 Rule 33U.P. Tenancy Actland partitionlegal necessityappealfinality of judgment

Judgment

-,
[2008] 2 S.C.R. 1114
.~~

A BRIJ NARAIN SINGH
v.
· ADYA PRASAD (DEAD) AND ORS. ~
(Civil Appeal No. 5689 of 2000)
FEBRUARY 18, 2008
B
[DR. ARIJIT PASAYAT AND R.V. RAVEENDRAN, JJ.]

Code of Civil Procedure, 1908: Y'
s. 11 and Or. 41, r. 33 - Principle of res judicata -
c Applicability of- Lands situated in four different villages - Four
suits i.e. one suit relating to lands situated in each of the four
villages filed under s. 49 of the Act - Said suits viz. suit nos. ,f-
97, 98, 99 and 100 decreed by a common judgment - Appeal "
against judgment in suit no. 98 dismissed - That judgment
D attained finality - Appeals against the common judgment in
suit nos. 99 and 100 allowed - Consequently suit nos. 99 and
100 dismissed - That judgment also attained finality- Whether
the judgment in appeals arising from suit nos. 99 and 100 would ~
I

operate as res judicata in any subsequent proceedings relating
~
E to the lands which were the subject matter of suit no. 98 - Held,
No - Plaintiffs in all the four suits were common but defendants
were not common - Also, the lands were situated in different
villages - Hence, decision in appeals relating to suit nos. 99
and 100 did not affect the decision in suit no. 98 which had.
F attained finality- UP Tenancy Act, 1939 - s.49.
The lands in question were situated in four different
y
villages. The owner of the said lands died. His widow
executed a sale deed in respect of the said lands. Pursuant
to her death, four suits i.e. one suit relating to lands
G situated in each of the four villages, were filed under
Section 49 of the U.P. Tenancy Act, 1939. The said four
suits viz. suit nos. 97, 98, 99 and 100 were decreed by the
Trial Court by a common judgment wherein it was held ~

that the said sale deed had not been executed for legal •
H 1114
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) 1115
AND ORS.

~
";: necessity. The predecessor-in-interest of Appellant A
challenged the judgment in suit no.98 by filing appeal
which was dismissed on ground of delay. No further
appeal was filed and thus the judgment in suit no.98
attained finality. Two other appeals were filed against the
common judgment in suit nos. 99 and 100 which the B
Appellate Court allowed holding that the said sale deed
'1' had been executed for legal necessity. Thus the two suits,
viz. suit nos. 99 and 100 were dismissed. The judgment
ending in dismissal of suit nos. 99 and 100 also attained
finality. c
Dispute arose as to whether the judgment in appeals
arising from suit nos.99 and 100 would operate as res
judicata in any subsequent proceedings relating to the
lands which were the subject matter of suit no.98.
D
High Court, by the impugned judgment, held that the
'l' subsequent appellate judgment in the appeals arising
from the suit nos. 99 and 100 will not operate as res judicata.
Dismissing the appeal, the Court
HELD: 1.1. Res Judicata is a principle of judicial E
administration and is based on the common law maxim
of public policy aiming at finality of litigation and
preventing a litigant from being tried twice over on the
same issue. [Para 11] [1123-F]
F
1.2. In the instant case there were four suits. The
plaintiffs in all the four suits were common but the
defendants in the suit were not common, and the
properties were situated in different villages. The decision
in the appeals relating to Suit Nos. 99 and 100 does not
G
affect the decision in Suit No.98 which had attained finality.

<
• Though in terms of Order 41 Rule 33, CPC benefit is
available to a party not appealing but the emphasis is on
the same suit. Therefore, the view of the High Court is
irreversible. [Par~s 17,18] [1125-F, G; 1126-A]
H
i-
1116 SUPREME COURT REPORTS [2008] 2 S.C.R.

..>
A lftikhar Ahmed and Ors. v. Syed Meharban All and Ors.
(1974 (2) SCC 151; Lal Chand v. Radha Kishan (1977 (2)
4 -
'SCC 88; Mt. Munni Bibi and Anr. v. Tirloki Nath and Ors. AIR
1931 PC 114; Kalipada De v. Dwijapada Das, 57 IA 24 and ~

Sheoparsan Singh and Ors. v. Ramnandan Singh, 43 LA. 91- '
B referred to.
CIVILAPPELLATE JURISDCTION: Civil Appeal No. 5689 1'
of 2000.

From the final Judgment and Order dated 241412000 of ·
c the :;igh Court of Judicature at Allahabad in CMWP No. 2857/
1978.
Rameshwar Prasad Goyal for the Appellant.
Shashindra Tripathi, Chitranjan Mishra and Mridula Ray
D Bharadwaj for the Respondents.
The Judgment of the Court was delivered by r-
-f"
•t.---
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
(L
the order passed by a learned Single Judge of the Allahabad I-

E High Court allowing the writ petition filed by the respondents. I
The writ petitioners had questione·d order dated 24.2.1973
passed by the Assistant Settlement Officer, Consolidation, .
;.

Jaunp,ur and the order dated 28.2.1978 passed by the Deputy ~
Director, Consolidation Jaunpur who were the respondents 1 '
F
and 2 in the writ petition.
y '
>-
.._
2. The factual position needs to be noted in brief as
essentially the pivotal question relates to the applicability of the
f
r
principle of res judicata.
2.1 One Gajadhar owned several lands situate in the 'r-
G
villages of Kurthuwa, Meerapur Siroman, Manapur and _.. t=
Ghuskhuri, as fixed rate tenant, including the suit lands. The fixed
-
~--

rate tenancy of the lands in those villages was mortgaged by
'·
Gajadhar. Gajadhar died leaving behind him his widow Sirtaji,
who through registered sale deed dated 8.6.1885 sold her right
H ><-

I-
J
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) AND 1117
ORS. [DR. ARIJIT PASAYAT, J.]

-f of redemption in regard to those lands to her relative Mata Badal. A
2.2. On the death of Mata Badal, his wife Sheorani, sold
the right of redemption in regard to some of the lands to third
parties. After the death of Sheorani, the nephews of Mata Badal,
namely Muneshwar, Bindeshwari and Bal Karan, sold the right
of redemption in respect of the suit properties in Kurthuwa in B
favour of Bhagwan Din Singh (grandfather of appellant) under
r registered sale deed dated 19.6.1911. It would appear that after
the purchase of equity of redemption, the said Bhagwan Diljl
Singh cleared mortgage and was in possession of the suit lands.
Bhagwan Din Singh •died leaving him surviving his son BhagwatiI c
Din Singh (father of appellant - respondent no. 3 in the writ
petition from which this appeal arises).
2 . 3. Sirtaji who executed the sale deed on 8.6.1885 in
favour of Mata Badal died in the year 1940. On her death,
D
Ganga Prasad and Bhagwati Din (ancestors of Respondent~
-..,., 1 to 6 herein) filed four suits 97 to 100 for partition before
the SOC, Machhli Shahar, Jaunpur, claiming that Gajadhar
died issueless, that his wife Sirtaji had inherited only a life
interest in the lands of her husband Gajadhar in the four
villages, and that on her death, the lands of Gajadhar devolved E
on the near relatives of Gajadhar, namely plaintiffs 1 and 2
and Defendants 1 and 2 in the four suits, who were
'
~
reversioners in regard to estate of Gajadhar. Suits 97, 9$,
99 and 100 respectively related to the lands in the villages of
Meerapur Siroman, Kurthuwa, Ghuskhuri and Manapur. F
Bhagwati Din Singh (father of Appellant) was impleaded as
Defendant No.3 in suit no.98, as his father, Bhagwan Din
Singh had purchased the right of redemption in respect 6f
the Kurthuwa lands.
G
2.4. The following genealogical tree accepted in the earlier
~ proceedings, traces Gajadhar's relationship with the plaintiffs
(Ganga Prasad and Bhagwati Din Singh) and defendants 1 and
,'
2 (Raj Narain and Chandra Bali), in the four suits as also with
Mata Badal:
H
1118 SUPREME COURT REPORTS [2008] 2 S.C.R.

A Sheo Upadhyay

Meharban Palai

B
Baijnath Jagannath
I I
I Jaipal
Deep Narain Kanhai Mata Badal
Smt. Sheorani
I
Sarjoo Prasad
c I I
Muneshar Bindesari Ganga Prasad Bhagwati Deen
Balkaran P3 P1
I
I
D Chandrabali Rajnarain
02 01
2 .5. The four suits were decreed by Sri lshwar Sahai, SOC
M~chhali Shahar, Jounpur, by a common judgment dated
20.3.1944. He held that the sale· by Sirtaji under deed dated
E 8.6.1885 was not for legal necessity. Bhagwati Din Singh
challenged the judgment in Suit No.98. The first appellate court
(Additional Commissioner, Varanasi) dismissed the appeal
(Appeal No.4/327) filed by Bhagwati Din Singh on 2.1.1945 on
the ground of delay. No further appeal was filed and the decision
F in Suit No.98 attained finality insofar as Kurthuwa lands claimed
by Bhagwati Din Singh. After dismissal of the appeal on
2.1.1945, on an application by the plaintiffs in Suit No.98, a final
decree was passed on 3.4.1945 and possession was taken by
plaintiffs in terms of the decree.
G 2.6. Two other appeals filed by the purchasers of lands at
Ghuskhuri and Manapur villages, against the common judgment -.
dated 20.3.1944 in Suit Nos. 99 and 1000 travelled up to Board
of Revenue and were remanded to the first appellate court. The
said two appeals arising out of suit nos.99 and 100 were heard
H by Additional Commissioner, Varanasi Division. He held that
-~
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) AND 1119
ORS. [DR ARIJIT PASAYAT, J.]

- .. ~
the sale deed dated 8.6.1885 executed by Smt. Sirtaji in favour A
of Mata .Badal was for legal necessity, that Mata Badal got valid
" title, and that the sale deeds executed by Sheorani and others
as legal heirs of Mata Badal were valid. He, therefore, dismissed
the two suits (Suit Nos. 99 and 100). That decision was upheld
by the Board of Revenue ·on 26.12.1967 and judgment which B
ended in dismissal of suit Nos. 99 and 100 also attained finality.
3. The resultant position was that there was two divers~
decisions in regard to the same sale deed dated 8.6.1885. The
first in regard to Kurthuwa village lands in Suit No.98 (purchased
by Bhagwan Din Singh)where it was held that the sale by Sirtaji c
in favour of Mata Badal on 8.6.1885 was not for legal necessity,
that Mata Badal, a relative of her late husband by taking undue
advantage of her young age had obtained the said sale deed
from Sirtaji, and therefore, on her death, the reversioners of her
husband's estate namely plaintiffs 1 & 2 (Bhagwan Din Singh D
and Ganga Prasad) and defendants 1 & 2 (Raj Narain and
~ Chandar Bata) were entitled to the lands. Consequently, sales
by persons claiming through Mata Badal did not have any title
after the death of Sirtaji in the year 1940. On the other hand, the
second decision, relating to Ghuskhuri and Manapur villages, E
in suit nos. 99 and 100, it was held that the sale by Sirtaji under
deed dated 8.6.1885 in favour of Mata Badal was for legal
necessity and therefore, Mata Badal got valid title and
'\ consequently, the sale deeds executed by persons claiming
through Mata Badal were valid, and the suits filed by persons F
-./ claiming to be reversioners in respect of the estate of Gajadhar
did not have any right, title or interests in the lands sold by Sirtaji.
4. When matters stood thus, in the consolidation
proceedings, the Bhagwati Din Singh (son of Bhagwan Din
Singh and father of appellant) filed an objection under section 9 G
of UP Consolidation of Holdings Act, 1954 (in short 'Act')
contending that the finding recorded by the court in Suit Nos.9~7
to 100 under"section 49 of the UP Tenancy Act, 1939 (in short
'Tenancy Act') that the sale deed dated 8.6.1885 by Smt. Sirtaji
was not for legal necessity was the. subject matter of appeals H
1120 SUPREME COURT REPORTS [2008] 2 S.C.R.

A before the Addi. Commissioner, Varanasi on 5.9.1966 in Appeal
no.231/22 and Appeal no.232/23 who held that the sale deed
dated 8.6.1885 executed by Smt. Sirtaji in favour of Mata Badal
was for discharging the debts incurred by Gajadhar, and
therefore, was for legal necessity. He contended that judgment
B dated 20.3.1944 in suit no.98 to the effect that the sale was not
for legal necessity should be deemed to have been set aside
or superseded by the subseq~ent appellate judgment in the
appeals arising from the suit nos. 99 and 100 which involved an
identical issue and that the decision dated 5.9.1966 would
C operate as resjudicata, in any subsequent proceedings relating
to the lands which were the subject matter of Suit No.98 even
though the decision dated 5.9.1966 did not relate to Suit No.98.
5. The Consolidation Officer held that the order dated
5.9.1966 was in respect of other village; and was not concerned
D with the property in question. He ordered for expunging the name
of Bhagwati Din Singh (the original respondent no.3) from basic
year entry. Bhagwati Din Singh filed an appeal before the
Settlement Officer (Consolidation) who allowed the appeal and
held that though the writ petitioners had taken possession on
E the basis of decree dated 21.6.1945 arising out of Suit No.98,
but appeals were filed relating to arising out of Suit Nos.99 and
100 against the judgment dated 20.3.1944 and in those appeals
the Additional Commissioner had decided against the writ
petitioners on 5.9.1966 and the judgment passed by the trial
F Court on 20.3.1944 against Bhagwati Din Singh in suit No. 98
shall be deemed to have been set aside and the judgment dated
5.9.1966 passed by the Commissioner shall be deemed to be
final. It was held that since the order dated 20.3.1944 was a
common judgment, therefore, it shall be deemed to have been
G set aside in all the suits. He further held that though the
possession was delivered on the basis of the order dated
21.6.1945 to the writ petitioners, after the decision dated
5.9.1966, Bhagwati Din Singh had the right to get possession
under Section 144 of the Code of Civil Procedure, 1908 (in
short 'CPC'). But since the possession is joint, therefore,
H
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) AND 1121
ORS. [DR. ARIJIT PASAYAT, J.]
possession shall not be deemed to have come to an end. A A
~
revision petition was filed by the writ petitioners against the
judgment before the Deputy Director of Consolidation, who
dismissed the same affirming the findings of the Settlement
Officer by order dated 28.2.1978.
6. Before the High Court the stand of the pre~ent appellamt B
further was that what was necessary to be determined was the
1 effect of the judgment dated 5.9.1966. It was pointed out that
since the appeal filed by the writ petitioners (respondents herein)
has been dismissed, holding that the sale deed dated 8.6.1885
was valid, they were not entitled to the benefit of the judgment I
c
dated 20.3.1944.
7. Stand of the present appellant was that when the trial
Court's common judgment dated 20.3.1944 that the sale was
not for legal necessity, was set aside by the judgment of appellate
D
authority dated 5.9.1966 in the other appeals arising from Suit
·---.- Nos. 99 and 100, it would have binding effect on the parties in
O.S.No.98 also. The High Court was of the view that the sole
controversy was as to whether judgment dated 20.3.1944
affirmed by the appellate Court in the appeal in 1945 relating to
Suit No.98 in the case of appellant's predecessor will operate E
as res judicata between the writ petitioners and Bhagwati Din
Singh or the judgment which was delivered on 5.9.1966 in the
appeals arising from Suit Nos.99 and 100 will have the effect of
res judicata and the judgment dated 20.3.1944 shall be deemed
~
----..(
to have been set aside. The High Court considered the effect of F
the principles of res judicata and held that the judgment dated
5.9.1966 will not operate as res judicata between the writ
petitioners and Bhagwati Din Singh (respondent no.3) as that
judgment was not between the same parties. Therefore, it w~s
held that the order of the Consolidation Officer was correct and G
)-
the orders of the Settlement Officer and the Deputy Director
Consolidation were not legally sustainable. The writ petition was
accordingly allowed.
8. In support of the appeal, learned counsel for the appell,nt
H
1122 SUPREME COURT REPORTS [2008] 2 S.C.R.

A submitted that the judgment dated 5.9.1966 in the two connected 1
appeals was in respect of a common judgment dated
\''
20.3.1944. It was held that the sale was for legal necessity and '
that will have effect notwithstanding the fact that the appeal filed
by the appellant was dismissed. He placed strong reliance on
B a decision of this Court in Narhari and Ors. V. Shanker and
Ors. (AIR 1953 SC 419).
''f
9. On the other hand, learned counsel for the respondents
submitted that the appeal filed by the appellant was dismissed
and there was no further challenge. In the circumstances, the
c benefit of the findings recorded in the other appeals cannot be
extended to the appellant.
10. The submission needs careful consideration. At the
threshold it must be stated that the decision in Narhari's case
(supra) is clearly distinguishable. The relevant portion of the
D
judgment in question relied on by the appellant reads as follows:
"4. In the judgment of the High Court, though reference is
,.
given to some of these decisions, it is merely mentioned
that the appellant relies on these decisions. The learned
E Judges perhaps thought that in the presence of the
Hyderabad Judicial Committee decision in Jethmal v.
Rang/al they need not comment on these decisions at all.
There is also a later decision of the Judicial Committee of
the State in Bansilal v. Mohan/al where the well known
and exhaustive authority of the Lahore High Court in Mst
F
Lachmi v. Mst Bhuli was followed. In the Lahore case, r- f
there were two cross suits about the same subject-matter,
filed simultaneously between the same parties, whereas
in the present case, there was only one .suit and one
judgment was given by the trial court and even in the first
G
appeal to the Sadar Adalat, there was only one judgment,
in spite of there being two appeals by the two sets of ·~

defendants. The plaintiffs in their appeal to the High Court
have impleaded all the defendants as respondents and
their prayer covers both the appeals and they have paid
ti
~-
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) AND 1123
ORS. [DR. ARIJIT PASAYAT, J.]

~ consolidated court-fee for the whole suit. It is now well A
settled that where there has been one trial, one finding,
and one decision, there need not be two appeals even
though two decrees may have been drawn up. As has
been observed by Tek Chand, J. in his learned judgment
in Mst Lachmi v. Mst Bhuli mentioned above, the B
determining factor is not the decree but the matter in
controversy. As he puts it later in his judgment, the estoppel
is not created by the decree but it can only be created by
the judgment. The question of res judicata arises only when
there are two suits. Even when there are two suits, it has C,
been held that a decision given simultaneously cannot be
a decision in the former suit. When there is only one suit,
the question of res judicata does not arise at all and in the
present case, both the decrees are in the same case and
based on the same judgment, and the matter decided
D
,,. concerns the entire suit. As such, there is no question of
the application of the principle of res judicata. The same
judgment cannot remain effective just because it was
appealed against with a different number or a copy of it
was attached to a different appeal. The two decrees in
substance are one. Besides, the High Court was wrong E
in not giving to the appellants the benefit of Section 5
of the Limitation Act because there was conflict of
decisions regarding this question not only in the High Court
of the State but also among the different High Courts in
--{ India." F
11. Res Judicata is a principle of judicial administration
and is based on the common law maxim of public policy aiming
at finality of litigation and preventing a litigant from being tried
twice over on the same issue.
G
~
12. The Privy Council in a series of judgments explained
this doctrine. In Kalipada De v. Dwijapada Oas reported in 57
IA 24 1 the Privy Council held:
"The question as to what is to be considered to be res
H
1124 SUPREME COURT REPORTS [2008] 2 S.C.R.

A judicata is dealt with by Section 11 of the Code of Civil
Procedure, 1908. In that Section are given many examples
4
of circumstances in which the rule concerning res
judicata applies; but it has often been explained by this
Board that the terms of Section 11 are not be regarded
B as exhaustive."
13. In Kalipada's case (supra), Lord Justice Darling,
y
speaking for the Bench, quoted with approval the observations
of Sir Lawrence Jenkins on Res Judicata in Sheoparsan Singh
and Ors. v. Ramnandan Singh reported in 43 LA. 91. Those
c observations are oft quoted and read as follows:
" .. their Lordships desire to emphasise that the rule of res-
judicata, while-founded on ancient precedent, is dictated
by a wisdom which is for all time. 'It hath been well said,'
declared Lord Coke, 'interest reipublicae ut sit finis litium-
D
otherwise, great oppression might be done under colour
and pretence of law' (6 Coke, 9a). Though the rule of the ...-
Code may be traced to an English source, it embodies a
doctrine in no way opposed to the spirit of the law as
expounded by the Hindu commentators. Vijnanesvara and
E Nilakantha include the plea of a former Judgment among
those allowed by law, each citing for this purpose the text
of Katyayana, who describes the plea thus: 'If a person,
though defeated at law, sue again, he should be answered,
"You were defeated formerly." This is called the plea of
F former Judgment. (See the Mitakshara (Vyavaharaj, bk.
II., ch. I., edited by J.R. Gharpure, p.14, and the Mayuka,
r--
ch.I., s.I, p.11, of Mandlik's edition.) And so the application
of the rule by the Courts in India should be influenced by
no technical considerations of form, but by matter of
G substance within the limits allowed by law."
14. This statement of law in Sheoparsan's case (supra) .
has been approved by this Court in the case of lffikhar Ahmed
and Ors. v. Syed Meharban All and Ors. (1974 (2) SCC 151)

H 15. This Court in Lal Chand v. Radha Kishan (1977 (2)
~
BRIJ NARAIN SINGH v. ADYA PRASAD (DEAD) AND 1125
ORS. [DR. ARIJIT PASAYAT, J.]

~ sec 88) also held: A
The principle of Res Judicata is conceived in the larger
public interest which requires that all litigation must, sooner than
later, come to an end. The principle is also founded on equity,
justice and good conscience which require that a party which
has once succeeded on an issue should not be permitted to be 8'
'y harassed by a multiplicity of proceedings involving determination
of the same issue.
16. Apart from following those principles, this Court in order
to apply the bar of res judicata among co-defendants must c
consider several criteria pointed out in the case of Mt. Munni
Bibi and Anr. V. Tirloki Nath and Ors. (AIR 1931 PC 114). In
the said case three tests have been laid down to find out whether
the decision in the former suit will operate as Res Judicata
between co-defendants. Those tests are:
D
-, (i) .There must be a conflict of interest between the co-
defendants.
(ii) It must be necessary to decide this conflict in order
to give relief to the petitioner.
E
(iii) The question between the co-respondent must be
finally decided.
17. It is to be noted that the factual scenario was entirely
different in the said case. It related to two separate decrees in
~~ one suit and therefore it was held that the principle of res judicata F
did not apply. Admittedly, in the instant case there were four
suits. The decision that was relevant was in suit No.98 which
attained finality. The decision in the appeals relating to Suit Nos.
99 and 100 does not affect the decision in Suit No.98 which
had attained finality. On a closer reading of the decisions it is G
clear that it does not help the appellant, it goes against the
~
submissions made. It also needs to be noted that the plaintiffs
in all the four suits were common but the defendants in the suit
were not common, and the properties were situated in different
villages. H
1126 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 18. At this juncture, the provisions of the Order 41 Rule 33 ~
CPC also need to be noted. By the said provision benefit is
available to a party not appealing. But the emphasis is on
the same suit. Therefore, the view of the High Court is
irreversible.
B 19. The appeal is. without merit and deserves dismissal
which we direct. There shall be no order as to costs.
B.B.B. Appeal dismissed.