JUDGMENT Ghulam Hasan, Misra and Madeley, JJ. - The facts leading up to the appeal and the reference are that Shankar Sahai and his brother Bhagwat Sahai each filed an application u/s 4, Encumbered Estates Act. Some of the properties given in the lists accompanying the respective written statements u/s 8 were common. Shankar Sahai asserted that they belonged to him in their entirety, While according to Bhagwat Sahai he was the owner of a half share therein. Each brother filed objections u/s 11 of the Act in the proceedings arising out of the others' application. The two objections were consolidated, and the evidence in one was read as evidence in the other. On the conclusion reached by the Special Judge Bbagwat Sahai's objections prevailed and those of Shankar Sahai were dismissed. The matter was again disposed of by one judgment, though two separate decrees were framed, one being placed on the re- cord of each case. Shankar Sahai appealed against both decrees. The two appeals were dismissed by means of one judgment. The decrees were again prepared and one was placed on the record of each case. Against the decrees of the lower appellate Court Shankar Sahai again preferred two appeals, one in the case in which he was applicant and the other in the case of Bhagwat Sahai in which he Was an objector. The latter appeal was dismissed, on the ground that in the lower appellate Court as well as in this Court Shankar Sahai omitted to implead the creditors who were necessary parties, and having regard to the rule enunciated in a string of cases of this Court from 1941 onwards his appeal in the lower Court as well as the appeal in this Court were incompetent. 2. In the appeal arising out of the proceedings in Shankar Sahai's own case, a preliminary objection on behalf of Bhagwat Sahai was raised to the effect that it was barred by the rule of res judicata. On the question of law involved in this objection there has been a divergence of judicial opinion between the various High Courts in India and between the decisions of the same High Court. On the question of law involved in this objection there has been a divergence of judicial opinion between the various High Courts in India and between the decisions of the same High Court. Accordingly the following questions were referred by one of us for decision by a Full Bench (1) Where two suits between the same parties involving common issues are disposed of by one judgment but two decrees, and an appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent, does the matter decided by the latter decree become res judicata, so that it cannot be re-opened in appeal against the former ? (2) If so, is the rule subject to any exception ? 3. The determination of the first question depends upon the basic conception underlying the rule of res judicata. It is well-known that the principle is founded on the maxim of Roman Jurisprudence interest reipublicae ut sit finis litium (it is in the interest of the state that, there should be an end to law suits). A farther consideration which is responsible for the formulation of the doctrine is to be found in the maxim Nemo debet his vexari pro una et eadem causa (no man shall be vexed twice over for the same cause). The bar which the law imposes on subsequent litigation is created by the existence of a previous judgment whereby the matter has once already been fully canvassed and fairly and finally determined between the parties by a competent Court of law. The application of this rule, it has been enjoined by their Lordships of the Judicial Committee, should be influenced by no technical considerations of form but by matters of substance within the limits allowed by law. See in this connection the observations of Sir Lawrence' Jankins in Sheoparsan Singh v. Ramnanian Singh (1916) 44 IA 91. In giving our answer we propose to be guided by the aforesaid basic conception and the injunction of the Privy Council. If the consolidated judgment in suits between the same parties wherein common issues are raised and disposed of forms the foundation of two decrees, and it is re- opened so as to necessitate the re-examination of the grounds on which the decision rests, it can scarcely be said that it represents in any sense a final adjudication between the parties. If the consolidated judgment in suits between the same parties wherein common issues are raised and disposed of forms the foundation of two decrees, and it is re- opened so as to necessitate the re-examination of the grounds on which the decision rests, it can scarcely be said that it represents in any sense a final adjudication between the parties. The suggestion that the single judgment must by a fiction be regarded as two independent separate judgments governing two separate decrees between the same parties appears to us to be more immaginary than real. If the grounds for decision are common and are attacked as erroneous, its finality cannot be invoked for supporting a plea of res judicata till it has in fact become final. In the case before us the subject matter of the litigations as well as the evidence in both cases is the same. The trial is one trial, and the reasons, which necessitated the dismissal of one case are also the reasons which impelled the Court to pronounce in favour of the plaintiff in the other. If the object of the appeal is to get rid of this adjudication, it is only the technical consideration of from which can alone be resorted to for the success of the plea of res judicata. The existence of two decrees is merely for the sake of complying with the barest formalities of law, and it will, in our judgment, be the negation of the principle to say that a matter, which is still res integra, should operate nevertheless as res judicata. The forceful objection of Sir Aushotosh Mukerji in Isup Ali v. Gour Chandra Deb (1923) 37 Cal. LJ 184, that to permit one appeal in these circumstances was tantamount to allow the decision, from which no appeal was filed, to be "collaterally attacked or implicitly ignored" seems, if we may say so with very great respect, to overlook the fundamental feature of the case, namely that there is only one trial, one evidence and one decision. 4. The cases in which a different view has been taken are now confined to the High Courts of Allahabad, Patna and Rangoon. The reasons upon which their opinind is based may be exemplified by the following passage occurring in the judgment of Sir John Stanley in the Full Bench case of Zaharia v. Debia (1911) 33 All. 51. 4. The cases in which a different view has been taken are now confined to the High Courts of Allahabad, Patna and Rangoon. The reasons upon which their opinind is based may be exemplified by the following passage occurring in the judgment of Sir John Stanley in the Full Bench case of Zaharia v. Debia (1911) 33 All. 51. A decree, unless it be a decree which is a nullity by reason of, for example, fraud, cannot be superseded except it be upon appeal in the regular course.........This being so, if we acceded to the argument addressed to us, we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly, and in execution proceeding would cause a complete impasse. 5. Chamier J, (afterwards Sir Edward Chamier) was of opinion that the case must be treated as if two separate judgments have been prepared. This was because the CPC requires a separate judgment and a separate decree for each suit or appeal. According to him, in the absence of a provisions enabling the Courts to consolidate suits and appeals and pass one judgment and one decree instead of as many judgments and as many decrees as there are suits or appeals, there could be no escape from the conclusion that the appellant must file to appeals, if he wishes to avoid the bar of res judicata. We may with respect paint out: that the practice of consolidating suits, appeals or proceedings under the inherent powers of the Court with or without the consent of the parties is not uncommon and has been long long recognised in this country vide Peacock v. Byjnath (1883) 10 Cal 58, The "Chusan" v. "Falls of Ettrick" (1895) 21 Cal 511, Kali Charan Dutt v. Manodabala Dasi (1922) 15 I C 897, Qazi Syed Muhammad Afzao v. .Mankumar Mahton (1922) 1 Pat. 669, Ramavtar Prasad Verma Vs. Satdeo Lal and Others, AIR 1939 Patna 30 , Dharam Das v. Dharam Das AIR 1917 All. 336 , Narayan Vithal Samant v. Jankibaikom Sita Ram Samant (1915) 39 Bom. 604 Ganesh Ramchandra Thakur v. Gopal Lakshman Thakur ILR 1943 Bom. 101, Ganga Prasahad v. Mr. Banspati ILR 1937 Nag. 6, Vengu Naidu v. Deputy Collector of Mathura Division AIR 1918 Mad. 368, Perumal Nadar Petitioners AIR 1928 Mad. 163, Ghansham Singh v. Bhola Singh (1923) 45 All. 604 Ganesh Ramchandra Thakur v. Gopal Lakshman Thakur ILR 1943 Bom. 101, Ganga Prasahad v. Mr. Banspati ILR 1937 Nag. 6, Vengu Naidu v. Deputy Collector of Mathura Division AIR 1918 Mad. 368, Perumal Nadar Petitioners AIR 1928 Mad. 163, Ghansham Singh v. Bhola Singh (1923) 45 All. 508, and Har Prasad Rai v. Brij Kiskan Das AIR 1918 Pat. 196. 6. The judgment in Zaharia's case came up for discussion in a subsequent decision of a Full Bench of the Allahabad High Court in Ghansham Singh v. Bhola Singh (1923) 45 All. 506. The referring order characterised the prevailing view in that Court as one which sacrificed, the ends of justice on the merits of the case to the purest technicality and it was desired therefore to obtain an authoritative opinion to set the controversy at rest. The appeal related to a suit in which there were two cross appeals followed by two decrees which were governed by one judgment. There were some salient points of distinction between the earlier Full Bench case and the one with which the learned Judges were concerned, but four out of the five Judges constituting the Full Bench considered that some of the reasoning and dicta contained in Zaharia's case went further than was necessary. The opinion gravitated in favour of the adjustment and regulation of the ultimate rights of the parties according to the final decision of the last Court of appeal where the decree from which no appeal was preferred contained nothing which was prejudicial to the appellant and was not raised and could not be set right if the appeal which he brought succeeded. Zaharia's case nevertheless still holds the field in the Allahabad High Court as will be apparent from Muhammad Mohtashitn v. Joti Prasad ILR 1941 All. 361 : 1941 AWR (H C) 128. The reason obviously is that the subsequent decisions in Ghansham Singh's case and in other cases to which reference need not be invited here were not in pari materia with that in Zaharia v. Dibia 19. We may mention that none of these decisions or of those of the Patna and Rangoon High Courts referred to hereafter the injunction contained in Sheoparan Singh v. Ramnandan Singh19 was noticed, and the learned Judges in all these cases, we venture to think, allowed themselves to be influenced by technical considerations of form. 7. We may mention that none of these decisions or of those of the Patna and Rangoon High Courts referred to hereafter the injunction contained in Sheoparan Singh v. Ramnandan Singh19 was noticed, and the learned Judges in all these cases, we venture to think, allowed themselves to be influenced by technical considerations of form. 7. The views held by the Patna and Rangoon High Courts are in line with Zaharia's case vide Dhani Singh and Others Vs. Sri Chandra Choor Deo and Others, AIR 1924 Patna 823 , Mrs. Gantrudge Oates v. Mrs. Millicent D Silva (1923) 12 Pat. 139 Ramkishan Lal v. Maulvi Abu Abdullah Syed Imxm Hussain Imam (1935) 156 I C 998, Anwar Alli Sowdagar v. Ameer Alli Sowdagar (1925) 2 Rang. 633 : AIR 1925 Rang. 104 and V.P.R. V. Chdkalingham Chettiar v. Maung Tha O v. B. Abirchand (1926) 4 Rang. 8 : AIR 1926 Rang. 122. In our opinion they do not .require a separate examination. 8. At one time the High Court of Calcutta appeared to agree with the conclusions reached by the learned Judges of the Allahabad High Court vide Isup Alli v. Gour Chandra Deb (1930) 34 CWN. 839, but in the latter decisions of that court in Manmohan Das v. Chandra Saha (1939) 40 Cal. W. N. 1176, Bahadur Singh Singhee v. Rani Jyotirupa Dabi (1935) 62 Cal. 642 and Nibaranchandra Shaha v. Matilal Shaha (1906) 29 Mad. 333 the opinion has now crystalised against the application of the doctrine of res judicata, to cases under reference. 9. The High Court of Madras ever since the Full Bench decision in Panchanada Velan v. Vaithinatha Ststrial27 has refused to accept the applicability of the principle of res judicata where two consolidated suits are decided by a single judgment and two decrees are passed as a matter of form. Sae Pappammal alias Mutha. Karuppayyse Ammal v. Meenammal I.L.R 1943 Mad. 235 and Kunhiyoor Manakkal Tavazhi Karnavan v. Advocate Mr. C G. Krishna Ayar (1943) 1 Mad. L. T. 325 and the cases cited therein. 10. The position in the Lahore High Court is now clarified be the Full Bench decision in Mst. Lachhmi v. Mst. Bhulli (1927) 8 Lah 384. Karuppayyse Ammal v. Meenammal I.L.R 1943 Mad. 235 and Kunhiyoor Manakkal Tavazhi Karnavan v. Advocate Mr. C G. Krishna Ayar (1943) 1 Mad. L. T. 325 and the cases cited therein. 10. The position in the Lahore High Court is now clarified be the Full Bench decision in Mst. Lachhmi v. Mst. Bhulli (1927) 8 Lah 384. The following observation of Tek Chand, J. may be quoted the foundation of the rule, as understood both by ancient and modern lawyers is (hat a question must be once fairly and finally tried by a competent Court and after this has been done all further litigation about it must be concluded for ever between the parties. The maxim is, as has been stated above, that" no one shall be vexed twice over the same matter." This to my mind presupposes that the issue his been once fairly and finally tried in a former litigation which was independent of proceedings in which the same matter is again in dispute. The essence of the rule seems to me to be that the two proceedings should be so independent of each other that the trial of the one cannot be confused with the trial of the other. Where two suits, having a common issue, are, by consent of parties or by order of the Court tried together the evidence being written in one record and both suits disposed of by a single judgment, can it be said that there have been two distinct and independent trials ? There being but one finding and one judgment on what principle can the hearing of the appeal in which this finding and this judgment are under consideration be barred merely because no appeal has been filed in the connected suit which was disposed of by that very judgment ? There Ins been in substance as well in form but one trial and one verdict and I venture to think it will be a travesty of justice to stills the hearing of the appeal against such a judgment on the ground that the findings contained in it operate as res judicata. In such a case there can be no question of the successful party being " vexed twice" over the same matter nor does the hearing of the appeal in any way militate against any rule of public policy which requires that there must be an end of litigation. In such a case there can be no question of the successful party being " vexed twice" over the same matter nor does the hearing of the appeal in any way militate against any rule of public policy which requires that there must be an end of litigation. There is not only nothing here to attract the principles underlying the rule of res judicata but on the other hand it seems to me that the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which requires that a party must have at least one fair trial of the issue resulting in a decision by the Court of ultimate appeal as allowed by the law for the lime being in force. 11. The Nagpur High Court has adopted the Lahore rule. See Damodhar Narayan Kimbi v. Narayan Gangaji Mankar I L R Nag 325. 12. In Oudh the decisions in the late court of the Judicial Commissioners favoured the application of the rule of res judicata on principles similar to those which were accepted in Allahabad. To the same effect was the opinion expressed by a Single Judge in this Court in Bhagauti Din v. Bhagwat 1933 O. W. N. 1093. In Bankey Lal v. Nand Lal (1940) 15 Luck, 126 a Division Bench of this Court while daaling with an appeal against one out of the two appellate cross decrees arising out of one suit came to the conclusion that the proposition in Bhagauit Das's case was too broadly stated. That was how the position stood at the time when the preliminary objection in -.this appeal was raised before the referring Judge, Since then however the matter has been exhaustively considered by a Division Bench which had occasion u/s 12 (2), Oudh Courts Act to deal with the question now, before us, and of which one of us was a member vide Mohammad Alimai v. Ch. Jamal Ahmad 1944 OA 100 : AWR (CC) 100 : OWN 131. The appeal in that case had been filed against a decree in one of the four consolidated pre emption suits disposed of by a single judgment. Jamal Ahmad 1944 OA 100 : AWR (CC) 100 : OWN 131. The appeal in that case had been filed against a decree in one of the four consolidated pre emption suits disposed of by a single judgment. On an objection regarding the maintainability of the appeal it was held that where there are several pre-emption suits relating to the same transaction decided by one judgment, a decree in identical terms being placed on the record of each case the plaintiff or plaintiffs in each suit being given the right to preempt in a certain order of priority, it is not necessary for a plaintiff who can under the decree exercise his right to preempt on the failure to do so of one or more of the plaintiffs in the other suit, to appeal against the decree in the suit brought by himself as well as against the decree in the suit brought by a plaintiff who has been given a prior right The appeal against the decree in his suit alone is not barred by res judicata on account of the decrees in the other suits becoming final. We are in complete agreement with the conclusions of the Division Bench. 13. The preponderant of judicial authority, as mentioned by Sir D. F. Mulla in his commentaries en the Code of Civil Procedure, is in favour of the view that where the matter in issue in two suits between the same parties was common and the suits were tried together on the same evidence and decided by the same Judge by one judgment, the fact that an appeal is preferred against one of the decrees of the trial Court or the Court of appeal does not by reason of the omission to prefer an appeal against the other decree bring into operation the bar of res judicata. 14. Question No. I involves two classes of cases Firstly where the appeal has not been preferred against the second decree and secondly where it is preferred but it is held to be incompetent. In either case, we think, the matters stand on the same footing, because the grounds upon which the judgment is based have not been finally determined to be sound. The in- competency of the second appeal does not amount to a finding that the judgment is accepted as correct. 15. In either case, we think, the matters stand on the same footing, because the grounds upon which the judgment is based have not been finally determined to be sound. The in- competency of the second appeal does not amount to a finding that the judgment is accepted as correct. 15. Our answer to the first question referred to us is, therefore, in the negative. 16. The second question referred to us admits of a short answer. The rule which we have indicated above is liable to exceptions which depend upon the circumstances of each case. The facts of the present case will illustrate this The decision that was given in the Encumbered Estates Act proceedings initiated by Bhagwat S that and against which the appeals preferred in the Court below and in this Court were found to be incompetent operated to adjudicate upon matters not between Shankar Sahai and Bhagwat Sahai alone but also between Shankar Sahai and the creditors of Bhagwat Sihai. As the creditors of Bhagwat Sahai are not parties to the appeal, and their interests cannot be allowed to be prejudiced in their absence, the appeal against the decision in the proceedings initiated by Shankar Sihai's case cannot he heard. There is another reason which creates an insuperable bar to the hearing of the appeal. This has been indicated in the referring order as follows In the event of this appeal succeeding the decree of this Court in favour of Shinkir Sihai and his sons will operate to supersede the other decree in spite of the fact that it his now been conclusively determined in case No 64 that Bibu Bhigwat Sahai is the owner of the properties in dispute. Such a supersession of the decree is not possible, unless it be by an appeal from the decision or by a regular suit based on fraud etc., The success of this appeal will therefore create a" position for the avoidance of which the rule of res-judicaia has been conceived. The Collector in case No. 63 would be asked to utilise half the share of the disputed properties for the liquidation of the debts of B. Bhigwat Sahai, whereas in case No. 688 he would be required to utilise the same share for the liquidation of B Shankir Satin's debts. This position to say the least would create an impasse. 17. This position to say the least would create an impasse. 17. We are not called upon to give an exhaustive list of cases in which exceptions might arise. This is obviously impossible and would as has been said above depend upon the circumstances of each case. In the light of what we have said above our answer to the second question is in the affirmative.