A single appeal cannot be filed against the decrees in two suits based on different causes of action and having different scopes.

ORDER : The point for determination which arises on the office note is whether a single appeal can be filed against the decrees in two suits.

2. The facts are the appellant herein as plaintiff filed O. S. No. 1714 of 1955 on the file of the City Civil Court, Madras, for recovery of possession of the suit property which he had purchased in a private sale held by the Nungambakkam S. D. R. Nidhi Ltd.. mortgagee thereof, in pursuance of the power conferred under S. 69 of the Transfer of Property Act, for an injunction restraining the defendant-mortgagor from committing waste and for mesne profits. The Nidhi (mortgagee) was not impleaded as party in that suit. The defendant therein, in her turn, filed a suit against the plaintiff in the above suit O. S. No. 1714 of 1955 and the mortgagee-Nidhi for a declaration that no title had passed to the purchaser and for directions to the defendants to render accounts or alternatively for recovery of Rs. 9000 from the mortgagee-Nidhi (1st defendant therein).

Both the suits were heard together by the City Civil Court and the suit O. S. No. 1714 of 1955 was dismissed while a decree was passed in the other suit O. S. No. 269 of 1956 declaring that no title had passed to the purchaser, defendant 2 therein, and plaintiff in the former suit, and directing the first defendant therein (mortgagee Nidhi) to hold a fresh sale and dismissing the suit in other respects. The plaintiff in the former suit O. S. No. 1714 of 1955 thereupon presented the above memo of appeal, S. R. No. 15407 on 4-5-1957 as one directed against the decree in that suit only. The office thereupon returned S. R. No. 15407 and S. R. No. 16582 querying whether any appeal had been preferred against the decree in the connected suit, the appellants advocate represented the papers on 13-6-1957 after adding the number of the second suit and the name of the first defendant in the connected suit also in the cause title and stating that this appeal has to be regarded as one directed against the decrees in both the suits.

Thereupon it was pointed out to him that since the subject matter of the two suits are not identical and there is an additional party in the second suit and since separate decrees have been drawn up having different consequences, separate appeals have to be filed and that the appeal which was originally filed was directed against one of the decrees only cannot at the stage of representation be converted into one against both the decrees.

3. The advocate did not agree and requested that the matter might be posted before court. The learned advocate relies upon the two decisions in Panchanada Velan v. Vaithinatha Sastrial, ILR 29 Mad 333 : 16 Mad LJ 63 (FB) and in Narayanaswami Aiyar v. Sevadappa Goundar, 1941-2 Mad LJ 932 : (AIR 1942 Mad 226), for his contention that two separate appeals are not necessary.

4. On going into these two decisions I find that the question at issue therein was whether the failure of a party to appeal against a decision in a connected suit will not make the latter decision operate as res judicata and preclude the court from disposing of on its merits, the appeal already filed against the decree in the other suit. The court held that the unappealed decree did not operate as res judicata in the appeal already filed and brought up for decision of court. The Full Bench decision contains observations at the end that the District Judge should have required the appellant to amend his memo of appeal so as to make it an appeal in both the suits. It is also seen from the report at page 68 that the subject matter of the two suits was the same and that the appeal was also filed under the old Code.

5. The language of the present S. 96 C. P. C. is clear that an appeal shall lie from every decree and a single appeal against the decrees in two suits based on different causes of action and having different scopes as in the present case does not appear to be at all contemplated.

6. In this connection the office has