One Janky Saha brought a suit against the Plaintiff as Defendant No. 1, the Defendant No. 1 as Defendant No. 2 and the Defendant No. 2 as Defendant No. 3 for money said to have been borrowed by the said Defendants. Defendant No. 3 was made Defendant No. 4 as the gomosta of the other Defendants. The Defendants Nos. 1, 2 and 4 denied the loans and Defendant No. 3 did not appear. The issues framed were:—
1. Had the Defendants the alleged transaction with the Plaintiffs and did they borrow the sums as stated in the plaint?
2. Is the claim against Defendant No. 1 barred by limitation?
3. Are the Defendants Nos. 2 and 4 liable to the Plaintiffs for the alleged debt?
4. What amount if any can the Plaintiffs recover from any and which of the Defendants?
It was found that Defendant No. 2 was not liable, that Defendant No. 4 as a mere gomosta was not liable, that Defendant No. 1 (the Plaintiff in this case) and Defendant No. 3 (Defendant No. 2 in this case) were liable. The decree was executed against the Plaintiff of this case and he satisfied the same and brings this suit for recovery of the decretal amount from Defendant 1 for self and as executor of his deceased brother on the ground that the money borrowed and decreed in favour of Janky Saha was borrowed for the business of the Defendant No. 1 and his deceased brother Dina Bandhu. Defendant No. 2, who was Defendant No. 3 in the creditor's suit is the son of Defendant No. 1, and Defendant No. 3, who was Defendant No. 4 in the former suit, is the gomosta of the Defendant's firm.
The trial Court gave a decree for half the amount claimed against Defendant No. 2 who was one of the judgment-debtors under the previous decree and dismissed the suit against the others as barred by limitation. The learned Subordinate Judge on appeal by the Plaintiff has decreed the suit in full against Defendant No. 1 who appeals before us.
It is contended on his behalf that the suit is barred by the principle of res judicata. Now the Plaintiff and the Defendants were ranged on the same side as co-Defendants and the question of the liability of the Defendants would be res judicata if it was raised and decided as a question as between the Plaintiff and them. The Courts are generally unwilling to extend the doctrine of res judicata to co-Defendants and it has been applied where it has been applied with great caution. In the case of Cottingham v. The Earl of Shrewsbury(1), Vice-Cancellor Wigram said, “if a Plaintiff cannot get at his right without trying and deciding a case between co-Defendants the Court will try and decide that case and the co-Defendants will be bound. But if the relief given to the Plaintiff does not require or involve a decision of any case between co-Defendants, the co-Defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the Plaintiff obtains”. In order therefore that a finding in a case should be res judicata between co-Defendants, three things are necessary: (1) that there should be a conflict of interest between co-Defendants, (2) that it should be necessary to decide on that conflict in order to give to the Plaintiff the relief appropriate to his suit, (3) that the judgment should contain a decision of the question raised as between the co-Defendants. See Gurdeo Singh v. Chandrika Singh(2) and Fakir Chand Lalubhai v. Nagin Chand Kalidas(3). In the previous suit of the creditor the Defendants had no conflict; they all denied the claim of the Plaintiff so that on the pleadings there was no conflict of interest amongst the Defendants; issue No. 3 was framed on the plea of Defendants Nos. 2 and 4, who said they were not liable as Defendant No. 2 had not taken the loan and had not authorised Defendant No. 3 and as Defendant No. 4 was a mere gomosta. Issue No. 4 was a general one on the said pleas and was intended to decide who were liable to the Plaintiff. The decision was that Defendant No. 2 was not liable to the Plaintiff so that none of the three elements of a res judicata between co-Defendants is present in the judgment. It is said, however, that the Plaintiff ought to have raised the plea that he now raises that he was a mere surety for the others. In the first place such a plea would be inconsistent with the plea that he did take evidently for the benefit of the present Defendants, in the second place it would not save him from the decree and in the third place it would be unnecessary to decide the question of the liabilities as between the several Defendants as the Plaintiff claimed a joint decree against all the Defendants. On all these grounds we think that the question is not res judicata.
The appeal is therefore dismissed with costs.
S.C.M
Appeal dismissed.