The general principles of res judicata do not apply where two suits are consolidated and decided by a common judgment, and an appeal is preferred against one decree but not against the other.

BERI, J.

( 1 ) A learned single Judge of this Court has referred the following question for answer: "whether in the facts and circumstances of the present case the appeal is barred by res judicata"?

( 2 ) LET us briefly state the facts. The plaintiffs as commission agents advanced Rs. 8,560/- to the defendants on 3-3-51 for obtaining a railway receipt of certain goods from the Punjab National Bank, Jodhpur. The plaintiffs also gave on 8-3-51 rs. 836/14/9 by way of payment to a broker. The defendants goods covered by the railway receipt when sold by the plaintiffs on behalf of the defendants fetched rs. 6501/15/6 and after deduction of expenses a balance of Rs. 3077/10/3 remained due to the plaintiffs and claiming interest and cost of notice the plaintiffs instituted a suit against the defendants which eventually was transferred to the civil Judge, Jodhpur, (being Suit No. 135/1955) for recovery of Rs. 3146/7/ -. We shall call it Suit No. 135 hereinafter. The defendants instituted a counter suit for rendition of accounts against the plaintiffs which also travelled to the same court by transfer as Suit No. 186. These two suits were consolidated by the consent of the parties and common issues were raised. By a single judgment dated 30-7-58 the trial court decreed suit No. 135 for Rs. 3120/5/- and dismissed suit No. 136. The defendants presented two appeals in the Court of the District Judge, Jodhpur. The appeal arising out of suit No. 135 was numbered as Civil Appeal No. 237 of 1958 and against the decree in suit No. 136 as 219 of 1958. The learned District judge heard these appeals together and by a common judgment dated 12-9-63 dismissed both the appeals. On behalf of the defendants an appeal was preferred in this Court against the decree of the District Judge No. 237 of 1958 arising out of suit No. 135 and preferred no appeal against appellate decree No. 219 of 1958 arising out of suit No. 136. On behalf of the plaintiff it was urged before the learned single Judge that the decree in appeal No. 219/58 operated as res judicata in the hearing of the appeal by this Court. The defendants, who are appellants before us, hotly contested the contention. The learned single Judge found that there was divergence of judicial opinion on the important question and an authoritative decision of the legal point involved would be helpful in resolving such controversies and thought it fit to refer the above mentioned question to us.

( 3 ) WE have heard learned counsel for the parties and we shall refer to the authorities cited by them at appropriate places.

( 4 ) THE question before us cannot be answered by reference to Section 11 of the code of Civil Procedure for the simple reason that the suits Nos. 135 and 136 and appeals arising therefrom Nos. 237 and 219 respectively were decided by a common judgment. Both the suits and the appeals arising therefrom having been decided on the same dates by common judgments neither of the suits could be called a "former suit" because in Explanation I of Section 11 the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The word "suit" in Section 11 means proceedings in action in courts of the first instance as distinguished from proceedings in appellate court. However it has been held that general principles of res judicata may also apply to appellate proceedings. Therefore, the terms of section 11 as such will not answer the question referred to us and it will have to be resolved by reference to general principles of the doctrine of res judicata. Accordingly it is not necessary to notice those cases cited before us which were decided on the terms of Section 11 of the Code of Civil Procedure. The essentials of the general principles of res judicata have been enunciated with unrivalled clarity in the case of Duchess of Kingston (2 Smiths leading cases, llth Edition, p. 731 (732)):

"from the variety of cas