The unappealed decree does not operate as a bar under Section 11, Civil P.C., and the doctrine of res judicata has no application when the appeal seeks to challenge the decision pleaded in bar.

Beasley, C.J.

1. There were two suits tried by the Additional Subordinate Judge of Tinnevelly. One of them was O.S. No. 10 of 1930 and the other was O.P. No. 41 of 1930. Both were tried together upon the same evidence. The important issues are Issue No. 2 in the original suit and Issue No. 1 in the original petition. Issue No. 2 in the original suit is:

Is the hypothecation bond alleged in the plaint true and supported by consideration?

2. Issue No. 1 in the original petition is:

Is respondent 1 an encumbrancer in good faith and for valuable consideration?

3. In the original suit respondent 1 in the original petition, the Official Receiver of Tinnevelly, was the petitioner. Upon reading those two issues it appears to me that both of them raise a common question, viz., whether the encumbrance was a good one or not and this was the view taken by the District Judge who had before him the appeal against the decree in O.P. No. 41 of 1930. He says:

The question at issue in this appeal has been decided in O.S. No. 10 of 1930 on the file of the Additional Subordinate Judge. That decision is now final and binding on both parties as no appeal has been filed against it. Hence this appeal cannot arise.

4. He therefore clearly takes the view that the appeal could not maintained. This is taking a view quite contrary to that taken by a Full Bench of this High Court in Panchandra Velan v. Vaithianatha Sastrial (1906) 29 Mad. 333. That decided that whore cross suits between the same parties on the same facts were tried together and judgment was given on the same day but separate decrees were passed and an appeal was preferred against one of the decrees alone the decree unappealed did not operate as a bar under Section 11, Civil P.C., so as to preclude the appellate Court from dealing with the decree appealed against and that the doctrine of res judieata has no application when the very object of the appeal, in substance if not in form, is to get rid of the decision which is pleaded in bar. In the opinion of the Pull Bench at p. 335:

It would load to startling results if wo were to hold that an appellate tribunal is precluded from dealing with a question which comes before it on appeal because an inferior Court, upon the same facts but in a case other than the case under appeal, had given a decision which had not been appealed against at the same time as the decision in the case under appeal.

5. It seems to me that the facts here are indistinguishable from those in the Full Bench case. That being so, the order the learned District Judge was clearly wrong and this petition must be allowed and the appeal remanded to the District Court for disposal according to law. The petitioner will have her costs of this petition.