The central legal point established in the judgment is the interpretation of a deed as a deed of mortgage by way of conditional sale or a sale with a condition of repurchase, and the application of res judicata in property disputes.

JUDGMENT - S.P. BHARUCHA, J.:---This is a second appeal directed against the judgment and order of the District Judge, Ahmednagar, sitting in appeal on the judgment and order of the Joint Civil Judge (Junior Division), Ahmednagar.

2. On 3rd May, 1950 the 10th respondent (the original 1st plaintiff) executed a deed in favour of one Madhav in respect of the land in suit. On 18th November, 1957 Madhav transferred the rights conferred upon him by the deed in favour of the 5th respondent. In 1957 one Sohanlal, the holder of a decree against the first plaintiff, purchased the land in suit in execution of the decree through a Court sale. On 13th June, 1958 the sale was confirmed. In 1966 the 1st plaintiff filed a suit for redemption alleging that the deed was a mortgage by way of conditional sale and that the mortgage amount had been repaid by virtue of the rent collected. The 5th respondent was impleaded as a defendant (the 5th defendant) in the redemption suit. He pleaded that the deed was a deed of sale with a condition of repurchase. In 1967 Sohanlal filed a suit for possession of the land making the 1st plaintiff and 5th defendant in the redemption suit defendants to his suit. On 28th November, 1967 the appellant before me purchased the land from the original 1st plaintiff. He was thereafter impleaded as the 2nd plaintiff in the redemption suit. On 4th November, 1969 the redemption suit was dismissed, it being held that the deed was a deed of sale with a condition of repurchase. On 28th November, 1969 Sohanlals suit was dismissed, reliance being placed upon the judgment dated 4th November, 1969 in the redemption suit. Sohanlal did not proceed further. Against the dismissal of the redemption suit an appeal was filed. In appeal a remand was ordered. On remand the trial Court held on 30th March, 1972 that the deed was a deed of sale with a condition of repurchase and that the sale in execution in favour of Sohanlal conferred upon him no title to the land. The trial Court, therefore, dismissed the redemption suit. The plaintiffs preferred an appeal. In the appeal it was held that the deed was a deed of mortgage by way of conditional sale but that the plaintiffs title to the property had been extinguished by virtue of the sale in execution in favour of Sohanlal and the plaintiffs were, therefore, not entitled to redeem. Against the dismissal of the appeal this second appeal is preferred by the 2nd plaintiff.

3. It was contended on behalf of the only contesting respondent, the 5th respondent, that the finding in Sohanlals suit that the deed was a deed of sale with a condition of repurchase was binding upon the appellant by reason of res judicata. The 1st plaintiff in the redemption suit (from whom the appellant before me claims title) and the 5th defendant in the redemption suit (the 5th respondent before me) were defendants in Sohanlals suit. The point as to whether the deed was a deed of mortgage by way of conditional sale or a deed of sale with a condition to repurchase was an issue that was decided in that suit. There are, however, three reasons why the decision in Sohanlals suit does not operate as res judicata against the appellant.

4. First, it is apparent from a reading of the judgment in Sohanlals suit that the Court relied upon the judgment in the redemption suit of the trial Court of 4th November, 1969 to hold that the deed was a deed of sale with a condition to repurchase. That judgment in the redemption suit was effected when the Appeal Court ordered a remand. It cannot then be said that the decision in Sohanlals case operates as res judicata against the appellant. Reference may be made in this connection to the judgment of the Privy Council in (S.P.A. Annamalay Chetty v. B.A. Thernhill)1, A.I.R. 1931 P.C. 263. The Privy Council held that no decree from which an appeal lay and had in fact been taken was final between the parties to as to form res judicata. Where an appeal lay and was taken the finality of the decree was qua

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