1. This is an appeal by the defendant Man Mohan Das from a decision of the District Judge of Tipperah confirming a decision of the Subordinate Judge of Tipperah and arises out of two cross suits between the appellant and one Shib Chandra Saha and others relating to certain transactions in jute. The defendant-appellant is a bepari or trader, and the plaintiffs. now respondents, are jute brokers. In his suit (No. 2 of 1925) the appellant claimed that there was a balance of Rs. 3,139-4-0' due to him for jute supplied, whereas the Sahas alleged that Man Mohan had taken money from them in excess of jute supplied and claimed Rs. 1,638 from him.

2. The suits were consolidated and tried together, only one set of issues being framed.

3. The trial Court dismissed Man Mohan's suit and partially decreed the Sahas' suit for Rs. 1,492-7 O. Man Mohan thereupon appealed to the District Judge not against the decrees in both suits, but only against the decree in Suit No. 68. When the appeal was first heard there was an application for the. reception of additional documentary evidence and the learned District Judge giving effect thereto remanded the case to the trial Court for taking additional evidence and recording finding thereon. Thereafter the case came back to the District Judge and objection was then taken to the competency of the appeal on the ground that no appeal having been preferred against the decision in the cross suit, that judgment must be deemed to stand unchallenged, and that therefore the principle of res judicata acted as a bar to the hearing of the appeal. The learned District Judge gave effect to this contention and dismissed the appeal. That decision is now challenged in second appeal and two main points have been urged on behalf of the appellant:

(1) Firstly it is argued that the Court of appeal below erred in holding that the appeal was barred by the rule of res judicata and; secondly that the learned District Judge having once remanded the case for investigation into the merits had no jurisdiction to reject the appeal on. a preliminary point.

4. The second contention may, I think, be briefly dismissed. The mere fact that the Judge in the first instance remanded the case for taking additional evidence could not deprive him of his jurisdiction to dismiss the appeal at a later stage if it was found to be incompetent.

5. The first contention however raises a point of some importance in regard to which there has been some conflict of judicial opinion. The controversy turns upon the meaning of the words "former suit" in Section 11, Civil P.C. Expl. 1 to this section was added when the Code was amended in 190S. It is in these terms:

The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

6. Previous to 1908 the view generally taken was that in such circumstances the rule of res judicata had no application: Abdul Majid v. Jew Narain [1889] 16 Cal. 233, Panahanan v. Vaidyanatha [1905] 29 Mad. 333 and Mariamnissa Bibi v. Jamal Bibi [1906] 33 Cal. 1101. In the case of Isupali v. Gour Chandra Deb A.I.R. 1923 Cal. 496 however a Division Bench of this Court took a different view of the matter, and held that any doubt upon the point had been set at rest by Expl. 1, Section 11 of the Code. Mookerjee, J., who delivered the judgment of the Court in that case referred to some of the earlier decisions and observed that the explanation made it clear that the expression "former suit" denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto:

To put the matter tersely" to quote his words, "the expression 'former suit,' means a previously decided suit, and the same rule applies to appeals.

7. He then went on to cite with approval a decision of Mahmood, J., in Bal Kiskan v. Kishan Lal [1889] 11 All. 148 where it was held that the doctrine of res judicata, so far as it relates to prohibiting the retrial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue, and that the rule is not limited to Courts of first instance but applies equally in the stage of appeal.

8. The question is whether we should follow this later decision, or the earlier decisions, and in particular the decision in Mariamnissa Bibi v. Jamil Bibi. It is to be observed that Ghose, J., in his judgment in the latter case accepted the view that the expression "former suit" related not to the date of the commencement of the litigation but to the time when the Judge is called upon to decide the issue. In other words he anticipated the amendment which was introduced into the Code two years later by the addition of Expl. 1 to Section 11. That being so the argument adopted by Mookerjee, J., in the case of Isupili v. Gour Chandra Deb would seem to be to some extent robbed of its force. The view taken in the earlier case commended itself to Ghose and Harrington, JJ., (Rampini, J., dissenting) notwithstanding that they read the section in the same light as it now stands. It would appear therefore to be doubtful whether Mookherji, J., was justified in not following that and other previous decisions of this Court to the same effect. Apart from this the decision of Mookerjee, J., was partly based upon other grounds viz. that there was no order for consolidation, and that the appeal was defective as some of the successful plaintiffs had not been joined as parties respondents. It may therefore be distinguished on that ground. It may further be mentioned that the view taken by Mookerjee, J., has not been accepted by the High Courts of Madras, Allahabad and Lahore: vide Panahanan v. Vaidyanatha, Ghansham Singh v. Bhola Singh A.I.R. 1923 All. 490 and Mt. Laahhmi v. Mt. Bhulli A.I.R. 1927 Lah. 239. On the whole therefore I am of opinion that we ought to follow the decision in Mariamnissa Bibi v. Jamal Bibi. We accordingly allow the appeal, set aside the judgment and decree of the learned District Judge, and remand the appeal in order that it may be heard and disposed of according to law.

9. The cross-objection will also be dealt with by the District Judge. The appellants are entitled to their costs of this appeal.

Mitter, J.

10. The question of law which falls for determination in this appeal is one of res judicata. The relevant facts necessary to be stated for deciding this question may be briefly stated thus: The plaintiffs, now respondents, brought a suit against the appellants Man Mohan Das (defendant 1) and one Asgar Ali (defendant 2) alleging that the defendants used to take money from time to time from the plaintiffs firm and used to supply jute to Landale and Clarke Company and another company, the plaintiffs being the brokers or dalals of the said company. The jutes were supplied between Sraban and Agrahan 1331 B. S. and the plaintiffs claim that they are entitled to got from the defendants the sum of over Rs. 1,638 as they have received moneys in excess of the price of jute supplied.

11. The defence of defendants was that Asgar, defendant 2, was not a partner of the appellant and that he was merely a servant and that he had supplied jute in excess of the price received.

12. After the institution of this suit by the plaintiff firm the defendant Man Mohan brought a suit against the plaintiff firm alleging that he had supplied jute in excess of the price he had received and that Rs. 3,139-4-0 was due from the plaintiffs to him.

13. The answer of the firm of brokers to this suit was that nothing was due from them to Man Mohan; on the other hand Man Mohan Das was liable to pay them Rs. 1,638 odd for which they had brought the earlier suit. Both these suits were tried together. Several issues were framed, but it is necessary to notice only two of them for the purposes of this appeal, They are issues 5 and 6.

14. Issue 5 runs as follows:

What is the quantity of jute supplied by the bapari to the broker and what is the price thereof ?

15. Issue 6 is in the following terms:

As between the Bepari and the Dalai i.e. between the plaintiffs in the suits, what amount of money if any is one entitled to get from the other.

16. At the trial both sides offered in evidence accounts of the transactions and the Court of first instance held that the accounts filed by the bapari (Das) were not correct and could not be relied on and that the accounts filed by the brokers were kept in the regular course of business and were reliable. In this view he dismissed the claim of Man Mohan Das in his suit and decreed in part for Rs. 1,492-7-0 the claim of the brokers in their earlier suit against Man Mohan Das, defendant 1, alone and dismissed the suit against defendant 2.

17. Man Mohan did not prefer any appeal against the decree dismissing his suit for Rs. 3,000 odd to the District Judge, but preferred an appeal against the decision and decree in favour of the brokers in the earlier suit in which the present appeal arises.

18. The appeal was heard by the learned District Judge of Tipperah who thought that additional evidence was necessary before he could pronounce judgment in the appeal and he remanded the case to the Subordinate Judge after keeping the case on his own file in accordance with the provisions of Order 41, Rule 25, Civil P.C. After the return of the findings by the Subordinate Judge the matter came up again for hearing before the learned District Judge when it was argued for the respondents that the appeal should be dismissed on the ground that the determination of the question in controversy in the appeal was barred by the principle of res judicata. This argument his prevailed with the learned District Judge and although he thought in the first instance that additional evidence should be taken in the case he did not allow any discussion on the merits of the appeal in face of what he believed to be a legal bar to such discussion. This is a course, which, it is necessary to draw the attention of the learned District Judge, has been condemned by their Lordships of the Judicial Committee in more than one case.

19. The learned District Judge should in cases of this kind decide the case on the merits as well for it would then obviate a remand if the decision of the lower appellate Court on the preliminary question of law did not commend itself to the High Court.

20. Against the decision of the learned District Judge the present appeal has been brought by defendant Man Mohan Das and it is argued that the learned Judge has gone wrong on the question of res judicata. It is said that the decision in the suit of Man Mohan was given simultaneously with the decision in the suit against him and it Could not be said that the suit in which Man Mohan was the plaintiff could be regarded as a decision in a "former suit" within the meaning of Section 11, Civil P.C. It is said that although the decision in Man. Mohan's suit has become final, no appeal having been filed against it, it could not be said to be a decision in a former suit within the meaning of Section 11, read with Expl. 2 to the said section. There are conflicting decisions on this point in the different High Courts in India and even in our Court; and if the point had to be decided I would have no other alternative but to follow the constitutional principle of referring the matter to a Full Bench in view of the recent pronouncement of the Judicial Committee of the Privy. Council in Bindeshwari v. Kesho Prosad A.I.R. l926 P.C.79. In our Court the decisions which support the contention of the appellant are the eases of Abdul Majid v. Jew Narain Matho, Marunnesa v. Jamal Bibi.

21. The contrary view has been taken in the case of Imp Ali v. Gour Chandra. The Madras High Court in a Full Bench decision takes the view in accordance with earlier Calcutta cases : see Panchananda v. Vaidyanatha. The Allahabad High Court in a Pull Bench decision support the view put forward by the appellant : see Ghansam v. Bhola. The Lahore High Court has in a recent Pull Bench decision followed the earlier Calcutta cases : see Mt. Lachmi v. Mt. Bhuli. The preponderance of judicial decisions in different High Courts seems to favour the contention of the appellant that the decision in Man Mohan's suit which is final cannot operate as res judicata in the suit against Man Mohan assuming the identical issue was directly raised in both suits. But I am relieved from referring this question to a Pull Bench in view of the fact that in this case the decree dismissing Man Mohan's suit could be sustained even if it be found that nothing was due to the brokers. It was sufficient for determination of Man Mohan's suit to find that nothing was due to Man Mohan-the finding that something was due from Man Mohan in respect of the same transaction was wholly unnecessary for the decision in Man Mohan's suit. Estoppel is mutual and let me examine the question bearing in mind this principle. Suppose it had been found in Man Mohan's suit that nothing was due to Man Mohan and at the same time nothing, was due from Man Mohan and that decision remained unchallenged could it be argued that the brokers would be barred by the principle of res judicata in appeal by them against the decision dismissing their suit on that finding ? Surely not; for the brokers' answer will be that that finding that nothing was due from Man Mohan was wholly unnecessary in a suit where the only question was whether anything was due to Man Mohan on the basis of the transaction in question, if the brokers would not be barred by res judicata. I fail to see that Man Mohan would be barred by a finding that Us. 1,492 odd was due from Man Mohan in a suit where he was claiming, a certain sum from the defendants, for estoppel, as I have said, must be mutual. In other words, the fact of Man Mohan's) liability to the defendant could not be) said to be directly in issue in a suit; where he seeks relief against the defendant. At most it could be said to be incidentally in issue. That being so the plea of res judicata is avoided for a judgment is conclusive on the matters which are directly in issue and not those which are brought incidentally into at controversy during the trial.

22. It appears to be generally agreed upon} that a fact cannot be in issue directly; when the judgment can be correct whether that fact exists or not : see Hukum Chand on Res Judicata, Article 35, where authorities are cited in support of this view. The rule that a judgment or decree is not conclusive of anything not required to support it, is not a mere rule of construction, but an unyielding res-friction of the powers of the parties and of the Court. Besides, if we closely examine the language of issue 6, we see-that really two distinct issues in the two suits have been blended into one. The two issues are:

(1) In suit by Man Mohon: As between the bepari (Man Mohan) and dalal what amount is due to the bepari (Man Mohan). (2) In suit against Man Mohan : as between the dalal and Man Mohan (bepari) what amount is due to the dalal?

23. These two issues which should have been framed in the two suits respectively have been blended into one issue in the two suits. Issue 5 is identical in the two suits, but so far as the claim against Man Mohan is concerned that issue is only incidental, for the object of that issue so far Man Mohan's suit is concerned is to find out whether anything is due to Man Mohan. As Dr. Bigelow observes in his well-known Treatise on Estoppel, a judgment is conclusive only in respect of matters necessarily inconsistent with it; see ,p. 206 Edn. 6. The decree dismissing Man Mohan's suit would not be in any way inconsistent with a decree dismissing the suit against Man Mohan brought by the brokers. Man Mohan may have nothing to get in respect of one transaction from the brokers and it may as well be that the brokers may have nothing to get from Man Mohan. The two decrees of dismissal would not be in any way inconsistent. I think therefore the plea of res judicata must fail on this ground. I would set aside the judgment and decree of the lower appellate Court and direct that the said Court do proceed to hear the appeal on the merits. The appellant is entitled to the costs of this appeal.

24. There is a cross-objection by the respondents with regard to the amount disallowed by the Court of first instance. That will have to be tried along with the appeal.

25. For the above reasons I agree with my learned brother in the order which he has made.