Abdur Rahman, J.

1. The lower appellate Court was not inclined to agree with the decision of the trial Court, but nonetheless, affirmed its judgment on a plea of res judicata which was taken before it for the first time. Ordinarily this is not permissible. But when the final finding on which the plea rests was given while the appeal was pending it was not only justified but, in my view, J bound to take notice of the final judgment arrived at between the parties and give effect to the same. It was very strongly urged on behalf of the appellant that the ploa of res judicata should be, since it was not taken for a great length of time while the suit was pending in the first Court, taken to have been waived. It is true that the petition under Section 4, (I.A. No. 526 of 1934) was decided on 17th August 1935 and the suit was. dismissed on 7th April 1936 but it must be remembered that an appeal had boon filed on behalf of the appellant from the decision of his petition in I.A. No. 526 of 1934, and the suit, O.S. No. 41 of 1932 was dismissed only on a preliminary point, viz., that it disclosed no cause of action. An appeal was preferred against this decree on h July 1936 and the de