JUDGMENT

1. These two appeals have been brought by the defendants to a suit for partition of joint family property against the appellate decrees passed by the learned District Judge of Sitapur in cross-appeals in the same suit. The following pedigree of the parties is not disputed before us:

TABLE

2. It will be seen that the plaintiffs to the suit are Nand Lal and his three sons while the defendants are the widow of Jugal Kishore, brother of Nand Lal, and the son, grandsons and great-grandsons of Nand Kishore, the other brother of Nand Lal. The plaintiffs claim a half-share in ten items of immovable property mentioned in list A attached to the plaint and a similar share in the moveables entered in list B. The learned Civil Judge who tried the case decreed the plaintiffs' claim to the extent of a one-third share in five items of the list A properties and dismissed the suit with regard to the other items and to the moveables mentioned in list B. In regard to three of the items for which the plaintiffs' suit was decreed, the plaintiffs were directed to pay their one-third proportionate share of the money that Nand Kishore spent on redeeming those properties from mortgages made while the family was joint. Against this decree both the parties appealed to the District Judge who dismissed the defendants' appeal altogether but allowed the appeal of the plaintiffs to this extent that he set aside the condition of payment of money by the plaintiffs in respect of two of the properties, namely Aswamau and Juharyamau properties, holding that those properties were redeemed by Nand Kishore while the family was still joint and presumably with joint family funds. He retained the condition imposed by the trial Judge with regard to the Gujrehta property which was redeemed by Nand Kishore in 1912 by payment of Rs. 498 after the family separated, according to the defendants' case, about July 1909.

3. Appeal No. 175 was brought by the defendants against the decree of the learned District Judge allowing the plaintiffs' appeal and No. 196 was brought by them against the decree of the lower Appellate Court by which their own appeal was dismissed. The latter appeal was however filed beyond time. Limitation admittedly expired on 9th May 1936. This Court was closed from 11th May to 10th July 1936, and Appeal No. 196 was filed on 11th July 1936. No application under Section 5, Limitation Act, was filed but the learned Counsel for the appellants asks us to condone the delay in filing this appeal. The learned Counsel for the respondents on the other hand argued not only that there are no grounds for extending the benefit of Section 5, Limitation Act, to Appeal No. 196 but also that as this appeal cannot be entertained being barred by time the other Appeal No. 175 also fails as the decree of the lower Appellate Court in the defendants' appeal has become final and operates as res judicata.

4. We are not prepared to admit Appeal No. 196 as there are no grounds on which the benefit of Section 5, Limitation Act, can be given to the appellants. At the same time we are not prepared to hold that Appeal No. 175 is barred by reason of Appeal No. 196 being time-barred and consequently not maintainable. The learned Counsel for the respondents relies on the case in Bhagauti Din v. Bhagwat (1933) 20 AIR Oudh 531 decided by a learned Judge of this Court sitting singly. In that case it was laid down that when there is one and the same judgment disposing of two separate appeals in which two separate decrees were prepared then if there is an appeal against one of the two decrees only, the judgment and the decree in the other appeal against which no appeal is filed and which thus becomes final would constitute res judicata. With the greatest respect to the learned Judge we think the proposition has been laid down too broadly and is not in our opinion applicable to each and every case in which the lower Appellate Court has disposed of two appeals by one and the same judgment. In