JUDGMENT

1. The facts which have given rise to this appeal are as follows: A person called Chauharja transferred by sale to Ram Sukh Dubey and Hardin Ram Dubey two properties which may be called the Mahal Banapur property and the Mahal Ahran Subans property and a third property with which we are not concerned. Rampat sued the vendor and the vendees to exercise a right of preemption over the Mahal Banapur and, the Mahal Ahran Subans properties. Gajodhar instituted a similar suit in respect of the same properties. As a result it was decided in the first suit that "Rampat had a preferential right of pre-emption in respect of the Mahal Banapur property, but not in respect of the Mahal Ahran Subans property and it was decided in the second suit that Gajodhar had a preferential right of pre-emption in respect of the Mahal Ahran Subans property and not in respect of the Mahal Banapur property. The vendees Ram Sukh Dubey and Hardin Ram Dubey," acquiescing in the rinding of the Court to the effect that Gajodhar had a right of pre-emption preferential to the right of anybody else which entitled him to acquire the Mahal Ahran Subans property, did not appeal against the decree in his favour; but as they did not accept the contention that Rampat had a right to pre-empt the Mahal Banapur property they filed an appeal against the decree in his favour.

2. The lower appellate Court has dismissed this appeal on a preliminary ground that it is bad because Ram Sukh Dubey and Hardin Ram Dubey have not appealed against the decree in favour of Gajodhar. The learned Subordinate Judge appears to have considered that there is necessarily a conflict between the decisions of the Allahabad High Court in Zaharia v. Debi, [1911] 33 All.51 and Ghansham Singh v. Bhola Singh, A.I.R.1923 All.490 and that the decisions of the Judicial Commissioner's Court in Waliullah v. Ejaz Ali, [1912]15 O.C.22 and Lachmi Kuar v. Umrao Singh, A.I.R.1924 Oudh311 conflict with the decision in Ghansham Singh v. Bhola Singh, A.I.R.1923 All.490. We do not, however, consider that there is any conflict in the matter at all. Mr. Piggott's decision in Waliullah v. Ejaz Ali, [1912]15 O.C.22 that, where there have been two decrees passed by the lower appellate Court and both of them require to be set aside in order to give the dissatisfied party the relief which he seeks and a second appeal is filed against one decree only, the decision which has been allowed to become final operates as res judicata in respect of the second appeal states the law correctly upon that point. But here the circumstances are as follows: There is nothing in the decree in Gajodhar's favour which prevents the appellants from obtaining the relief that they desire against the decree in Rampat's favour. The remarks of Sir Grimwood Mears at p. 510 in Ghansham Singh v. Bhola Singh A.I.R. 1923 All. 490 are very much in point.

Where it appears to an appellate Court that there are two decrees arising out of two suits heard together or raising the same question between the same parties, or arising out of two appeals to a subordinate appellate Court, and only-one of such decrees is brought before it in appeal, and there is nothing prejudicial to the appellant in the decree from which no appeal has been brought which is not raised 'and cannot be set right if the appeal which he has brought succeeds, the right of appeal is not barred either by the rule of res judicata, or at all, by reason of his failure to appeal from the decree which does not prejudice him. It would be indeed wrong for an appellant to appeal against a decree which did not prejudice him and to which he did not object, or to appeal against two duplicate decrees whore an appeal against one of them would be sufficient, and he is certainly under no obligation to do so.

3. We accordingly find that this appeal was not barred by res judicata; and setting aside the decision of the lower appellate Court upon the preliminary point of law return the appeal in order tha