ORDER OF REFERENCE TO A FULL BENCH.

Napier, J. — The question which arises in this appeal is one of estoppel by a previous judgment. This suit was by one Syed Ahmad against the Secretary of State to recover a sum of Rs. 394 alleged to be due to the plaintiff as a person entitled to possess the Asari Sheriff and perform the services connected therewith and to receive from Government the emoluments granted by Government to the person so entitled. The defendant pleaded that the plaintiff was not entitled to the office, his claim having been negatived by the judgment of the High Court in Second Appeal No. 726 of 1913 and also that the suit was barred by the rule of res judicata.

The issue framed was “whether the plaintiff's right to the office in question is concluded by reason of the decree in Second Appeal No. 726 of 1913 on the file of the High Court.” The suit in that Case was by the present plaintiff against two other persons alleging that the plaintiff was entitled to perform the Asari Sheriff services and to recover annually the emoluments of Rs. 394 from Government without any objection by the defendants. The 2nd defendant was recognised by Government as the person entitled to the emoluments. The Court of the Subordinate Judge of North Arcot on appeal from the District Munsif in that suit held against the plaintiff's right. It pointed out that the plaintiff did not claim the office by appointment either by Government or by the last holder of the office but only according to the Mahomadan law of succession to private property, and held that that law did not apply and that therefore the plaintiff had no title. In the Second Appeal to the High Court the judgment states as follows:—“It being clear that the plaintiff has no title to the office, the declaration of title to which was the principal relief claimed in the suit, his suit brought for that relief and other subsidiary relief was rightly dismissed by the Lower Appellate Court.”

Dealing with the second issue in this case the District Munsif held that it was no longer open to him now to sue to recover the emoluments appertaining to the office he being concluded by reason of the prior judgments. The Lower Appellate Court however held that the decision in the former suit did not operate as res judicata.

It must first be pointed out that no suggestion is made in this suit that the plaintiff's suit was barred under Sect. 11, Code of Civil Procedure. This contention could not have been raised as the defendants in the prior suit were different. But the Lower Appellate Court is in error in supposing that this disposes of the question. It is contended that the judgment in the prior suit disposed of his claim and that the plaintiff cannot raise this question in another form. This proposition is established in the case of Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar, entirely apart from any question of Sect. 11. The Bench there accepted the proposition that the relation established between the parties by a judgment is conclusive against third persons in the absence of fraud upon them. The prior suit having been between a person put forward by Government and the plaintiff, the decision as to title between them is binding on the defendant in this suit and must therefore be binding on the plaintiff on the well-known principle that estoppels must be mutual assuming always that the case in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar, is rightly decided.

The same proposition was laid down in the case of Ramamurti Dhora v. The Secretary of State for India in Council. There the Bench adopted the view expressed in an unreported case Second Appeal No. 574 of 1909, and re-stated the same proposition as was there laid down. On page 144 the learned Judges say “The question does not depend on the application of the doctrine of res judicata between the parties as expounded in Sect. 13, Code of Civil Procedure (old Code). That section does not cover all cases of estoppel by judgment.” On page 143 they say “The question relating to the ownership of the land was one entirely between the plaintiffs and the Barikis; and the Barikis having obtained judgment against the plaintiffs, third parties having no interest in the land at the time of the litigation cannot dispute a settlement of the dispute between them as to title, and it appears to us to be equally true that neither of the parties to the litigation can be permitted to aver as against third persons in the like position that the land belongs to himself and not to his opponent in the litigation.” This judgment, again, if correct, is conclusive of the plaintiff's claim.

It is suggested that these cases were wrongly decided, and reliance is placed on the judgment of the learned Chief Justice and another learned Judge in Second Appeal No. 1747 of 1919. The Court there says that the grounds on which Ramamurti Dhora v. The Secretary of State for India in Council, was decided were questioned in a judgment of the Calcutta High Court in Peari Mohan Shaha v. Durlavi Dassya and the Court agreed with the view therein taken. The Court also refers to the judgment of the Privy Council in Gokul Mandar v. Pudmanund Singh(3) as laying down that the provisions of Sect. 11, Civil Procedure Code are exhaustive. With the greatest deference to the learned Chief Justice and the other learned Judge, I think that the language of the Board has been misconstrued. I do not think the Board ever intended to lay down that there was no such thing as an estoppel by judgment outside the Civil Procedure Code. I have elsewhere (Second Appeal No. 1888 of 1919) expressed my opinion that under the Civil Procedure Code the question is not strictly one of estoppel and that therein lies the distinction between res judicata in India and before the Courts in England. Under the Code the Court is prohibited from trying any issue in which the matter directly and substantially in issue has been heard and finally decided by a previous Court. The section operates to bar the jurisdiction of the Court to try and goes far further than the principle under which a party is estopped from offering evidence on an issue Dealing with this question of want of jurisdiction to try a case the Board pointed out that the first Court must have jurisdiction to try the suit in which the issue is subsequently raised and that the words of the section could not be extended beyond their provision. I cannot read the words of the Board as meaning to lay down that consent decrees, decrees by default and other judgments in which the question at issue has not been heard and decided cannot be pleaded as estoppels. In In re South American and Mexican Co., Exparte Bank of England, Lord Herschell delivering the judgment of the Court of Appeal stated with regard to judgments by consent that it “is intended to put a stop to litigation between the parties just as much as a judgment which results from the decision of the Court after the matter has been fought out to the end.” Therefore I cannot think that the Board intended to lay down that there can be no estoppel by judgment outside the Civil Procedure Code.

In Peari Mohan Shaha v. Durlavi Dassya Jenkins, C. J. and Mookerjee, J., seem to have thought that they were bound by the decision of the Privy Council in Gokul Mandar v. Pudmanund Singh on the subject of res judicata to hold that no estoppel by judgment could be pleaded. But they held that the previous judgment was cogent evidence against an assignor of one of the parties to the previous suit. In this case the person whom it is sought to bind is not an assignee who would of course be bound by Sect. 11 or an assignor, but the actual party himself. I cannot therefore agree that what was decided in that case is any authority against the weight of the decisions in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar(4) and Ramamurti Dhora v. The Secretary of State for India in Council(5).

Reliance was placed by the respondent on Arumuga Mudaliar v. Krishnasatni Naicken(6). In that case the correctness of the doctrine laid down in Suppa Bhattar v. Suppu Sokkayya Bhattar(7) was considered. But that seems to me to have no bearing on the question raised here. It seems to me that the only answer to the reported decisions in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar, and Ramamurti Dhora v. The Secretary of State for India in Council is the suggested effect of dictum of the Privy Council referred to by the learned Chief Justice. I venture to think that it in no way lays down anything at variance with the effect of estoppel by judgment outside res judicata. But as it has been doubted and as the question is in my opinion one of great importance, I would refer the matter to a Full Bench, the question referred being whether in the circumstances of this case it is open to the plaintiff to re-assert a title which was definitely negatived in a previous suit against a contesting claimant.

Krishnan, J.—The first question argued before us is the one raised, in issue 3 whether the plaintiff's right to the office of Asari Sheriff and its emoluments is concluded against him by reason of the decision in the prior litigation between him and his nephew Syed Kadir Badsha Sahib which ended in Second Appeal No. 726 of 1913. In that Second Appeal it was decided that plaintiff had no title to the office. The Government contend in this suit that Badsha Sahib is the proper office-holder entitled to the Yeomiah allowance attached to the office and not the plaintiff and that the question of title to the office is res judicata between him and the plaintiff and that they are entitled to rely on the plea in this suit and the plaintiff cannot reopen the question.

For this contention of the Government reliance is placed by the learned Government Pleader on the rulings in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar, Boyinapalli Venugopala Rao v. Nekkalapudi Venkatarayudu, Ramamurti Dhora v. The Secretary of State for India in Council, and Suppa Bhattar v. Suppu Sokkaya Bhattar, which are in his favour. But on the other side our attention has been drawn to the case in Peari Mohan Shaha v. Durlavi Dassya, and the unreported judgment of the learned Chief Justice and Seshagiri Aiyar., J., in Second Appeal No. 1747 of 1919, both of which dissent from the view expressed on the point in the cases cited by the Government Pleader. In this state of conflict of authorities, I agree to the reference of the question to a Full Bench.

In doing so, I would pointed out that the plea raised here is in opinion not really that the issue as to plaintiff's title is directly res judicata between him and the Government but that it is res judicata between him and the person whose title the Government is setting up and that the Government is entitled to rely on that plea in establishing that title and defeating the plaintiff's claim. In other words, we have here a plea of jus tertii and when such a plea is raised the question of title or the jus set up has to be decided as if it arose between the party against whom it is set up and the tertius or third party. In such a case, it seems to me that the person setting up the jus tertii is entitled to rely on all pleas that would have been available to the third party to prove his title whether it be one of estoppel by res judicata or otherwise. Similarly he will also be bound by all pleas available against that third party. Even admissions made by that party could be relied on against him.

The question therefore in cases like the present is not in the first instance a question of res judicata between the parties to the subsequent suit but a question of what pleas a party is entitled to set up when he pleads jus tertii. On raising the plea of res judicata between the tertius and the opposite party he must show that the plea is well founded between them under Sect. 11, Code of Civil Procedure before he can succeed. I do not think it is necessary to pray in aid any principle of res judicata outside the scope of Sect. 11, Code of Civil Procedure in this cause. To do so would be against the opinion expressed by the Privy Council in Gokul Mandal v. Pudmanund Singh and is not justifiable. So far as the plea involves the question of res judicata between plaintiff and Badsha that question must be decided under Sect 11 itself. If the res judicata pleaded is established under Sect. 11 the next question will be whether the defendant can rely on it against the plaintiff; and that is not a question governed by Sect. 11 at all but by considerations of what pleas are available to a person setting up a jus tertii under the general law. It seems to me that confusion arises in not keeping the two parts of the question distinct and separate. If the Government were not setting up a jus tertii but were only pleading that the finding in the former suit was res judicata directly between them and the plaintiff against the plaintiff's title without admitting and setting up Badsha's title it would be difficult to support their contention as they were not parties to the previous litigation nor can they be said to claim under any of those parties. The finding clearly does not bind them of its own force and they cannot take advantage of it simpliciter. It is only so far as they set up the third party's title that the plea of res judicata is available for or against them.

As the matter will be fully argued before the Full Bench, I have only briefly indicated my view; it will reconcile the earlier rulings of this Court with the dictum of the Privy Council.

This Second Appeal came on for hearing on the 14th, and 15th days of March and this day before a Full Bench as constituted above.

The Government Pleader for the Appellant.

Messrs. S. Varadachariar and A. Srirangachariar for the Respondent.

OPINION

The Chief Justice. — The question is whether the plaintiff is estopped from bringing this suit against Government to recover the emoluments attached to the office of Mutawalli of the suit wakf, an office which he now alleges to be descendible by usage to the nearest qualified male heir of the last holder of the office, by reason of the dismissal of the previous suit instituted by him against his elder brother, the then 1st defendant, and that brother's son, the then 2nd defendant, for a declaration that their father's will nominating such 2nd defendant and the plaintiff's own son to succeed him in the office was invalid, and that the plaintiff by reason of his elder brother's insanity was entitled to succeed to the office and its emoluments and for an injunction restraining them from interfering with him. The suit was dismissed in Second Appeal by the High Court which held that the plaintiff had clearly no title to the office and that the appeal had been rightly dismissed by the Lower Appellate Court. The Lower Appellate Court held that in the absence of any special provision or usage the office devolved on the nominee of the last Mutawalli, and declined to allow the plaintiff to set up a case of usage which had been abandoned in the Lower Court and which was not proved. In the present case the plaintiff has pleaded that he is entitled to succeed by the usage of the institution, and the defendant, whilst admitting that the plaintiff's father was “an hereditary holder of the Yeomiah allowance”, has denied the plaintiff's right and also relied on the decree in the previous suit as barring the present suit.

As regards the general question our decision should in my opinion be based on the provisions of the Civil Procedure Code and the Evidence Act and on the English Law on which they are founded. The Privy Council in Imambandi v. Mutsaddi has deprecated the practice of referring to foreign decisions and observed that the judgments of foreign Courts based often on considerations and conditions totally differing from those applicable or prevailing in India are only likely to confuse the administration of justice, and the warning is specially applicable with regard to subjects which are dealt with in Indian Codes based on English precedents.

In England, as observed in Roscee's Nisi Prius p. 190, “the judgment of a Court of concurrent jurisdiction directly upon a point is, as a plea, a bar, and, as evidence, conclusive upon the same matter between the same parties,” and he goes on to explain that it is conclusive (as an estoppel) where there is an opportunity of pleading it; but that, where there is no such opportunity, it is conclusive as evidence. In India Sect. 40 of the Evidence Act makes a previous judgment relevant on the question whether it by law prevents the Court from taking cognizance of a suit or holding a trial. The law which prevents the Court from taking cognizance of a suit or holding a trial is to be found in Sect. 11 of the Code of Civil Procedure, which only prohibits the trial of a suit or issue which has been directly and substantially in issue in a former suit between the same parties or “between parties under whom they or any of them claim, litigating under the same title.” Now the effect of this section read with Sect. 9 in my opinion is to preclude the Court from refusing to try a suit or issue which was not between the same parties but between one of such parties and a third person, because, as observed by the Privy Council in Gokul Mandar v. Pudmanund Singh, “the essence of a Code is to be exhaustive on matters in respect of which it declares the law, and it is not the province of a judge to disregard or to go outside the letter of the enactment according to its true construction.” It is true that as held by the Privy Council in Ram Kirpal Shukul v. Massumat Rup Kuari and in a very recent case of Hook v. Administrator General of Bengali this section is not to be read as entitling a party to reagitate a matter decided at an earlier stage of the same suit; and it is also true that it does not prevent consent decrees from operating an estoppel; but it does in my opinion prevent the Court from refusing to try suits or issues by reason of previous judgments not between the same parties, a sort of estoppel unknown to English law, especially as the Evidence Act closely following the English law contains express provisions as to the general effect of previous judgments in evidence. Sect. 41 makes certain judgments of a Court in the exercise of a Probate Matrimonial Admiralty or Insolvency Jurisdiction not only relevant but conclusive evidence of certain matter. Having dealt with such judgments, which are usually known as judgments in rem, the Act goes on to deal with other judgments generally known as judgments in personam, and provides in Sect. 42 that they are “relevant if they relate to matters of a public nature relevant to the inquiry,” but are not conclusive proof of what they state, and in Sect. 43 that all other judgments are irrelevant unless the existence of such judgment is a fact in issue or relevant under some other provision of this Act, and under those other provisions the judgment may be relevant but cannot be conclusive in law though it may in fact. Thus in Brew v. Haren where the question was whether the plaintiff was the owner of the foreshore, the facts that he had successfully prevented people from taking seaweed from the shore and that he had instituted a suit for trespass in which there was a reference to arbitration and an award in his favour were held evidence of ownership. Similarly if, in a suit where the previous judgment is not res judicata under Sect. 11 Civil Procedure Code a question should arise whether certain property belonged to A or B a judgment by which A had recovered possession on his title from B by a decree which had become final might be just as conclusive evidence as a conveyance from B to A irrespective of the question whether the previous judgment was right or wrong. A previous judgment between altogether different parties might even be conclusive in the same way, as in R. v. Hebden, the report of which in Selwyn's Nisi Prius, Vol. 2, p. 1136 is referred to both by Taylor and Roscœ. That was a quo warranto to try the defendant's right to be a bailiff of Scarborough. He relied on his election under two former bailiffs. The prosecution denied that they were bailiffs, and on this issue, tendered a judgment of ouster against the two bailiffs in question. On a motion for a new trial, it was held that the evidence was rightly admitted, the Court observing: “The defendant has made the title of Balty and Armstrong (the previous bailiffs) part of his right, and if he gives evidence of the right of their election, can that better be disproved than by a judgment of ouster wherein such election is declared to be void.” Reference may also be made to the provisions of the Specific Relief Act which expressly provides in Sect. 43, that declaratory decrees, made under Sect. 42 shall not be binding except on the parties to the suit and those claiming under them.

As regards the present case, all that was decided in the previous suit was that the present plaintiff had not pleaded or proved in that suit that there was any special usage as to the descent of the office in question which would render the ordinary Mahamadan Law inapplicable. The previous judgment not being between the same parties does not in my opinion estop them from setting up such a special usage in the present suit against the present defendant who was no party to the suit. In Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar the learned Judges relying on a passage in Mr. Bigelow's Treatise on the Law of Estoppel adopt the rule that judgments in personam establishing the relations between parties are an exception to the general rule that judgment in personam bind only parties and their privies.

The judgment in Ramamurti Dhora v. The Secretary of State for India in Council after referring to some dicta of Lord Coke Which it is now admitted apply to judgments in rem, quotes the following extract from Bigelow “if all who have a right to appear and be heard in a cause have been duly made parties the judgment establishes a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, bind third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it and that the question should be determined without collusion. Judgment that A is debtor of B is an example…….

Indeed, the difference between judgments in rem and judgments in personam in any law, as regard their effect, appears at bottom to be only a difference of “degree”. However attractive this doctrine may appear to be, it is in my opinion opposed to the provisions of the Indian Evidence Act, which was not referred to either in this or the earlier decision, and in my opinion precludes the reception of the American rule in India. That rule is in my opinion in conflict with the provisions of our statute law. This is in effect the view taken by Jenkins, C. J. and Mookerjee, J. in Peari Mohan Shaha v. Durlavi Dassya.

I would therefore answer the question in the affirmative and overrule Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar and Ramamurthi Dhora v. The Secretary of State for India.

Spencer, J.—At the very commencement of the arguments I drew attention to Sects. 40, 41, 42 and 43 of the Indian Evidence Act which appeared to me to be exhaustive of the question of the relevancy of judgments other than those which operate as a bar to the trial of a suit or issue between the same parties or their privies under the law of res judicata contained in Sect. 11 of the Civil Procedure Code. These sections of the Evidence Act have not been referred to in the order of reference or in the judgments of the two Courts below in dealing with the effect of the judgment in the prior suit (O.S No. 274 of 1911).

As regards the decisions in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar and Ramamurti Dhora v. The Secretary of State for India in Council I agree with my Lord in thinking that they went too far in extending the principle of estoppel by judgment beyond the limits of our Codes of Procedure and Evidence, and that they should be overruled as being in contravention of the principles laid down by the Privy Council in Gokul Mandar v. Pudmanund Singh for the interpretation of codified law and as being examples of the tendency since deprecated by their Lordships in Imambandi v. Mutsaddi of referring to foreign decisions.

With the exception of the above two decisions of this Court and the case in Boyinapalli Venugopala Rao Garu v. Nekkalapudi Venkatrayudu which followed the earlier of them, and the cases in Suppa Bhattar v. Suppu Sokkayya Bhattar and Rahim-un-nissa Begam v. Srinivasa Aiyangar(8) which were cases of privity of estate, our attention has not been called to any authoritative ruling of a High Court in this country which would support the return of any other answer but an affirmative one to the question referred to us.

Kumaraswami Sastri, J.—The question raised by the reference is whether it is open to a party to reassert as against a third person a title which has been definitely negatived in a previous suit against a contesting claimant. The judgment which is pleaded in bar is a judgment in a previous suit filed by the present plaintiff against two other persons for a declaration that he was entitled to the Asari Sheriff and to recover from the Government the emoluments of the office. It was held in that suit that the plaintiff did not prove title to the office and the suit was dismissed. The present suit is filed by the plaintiff against the Government to recover a sum of Rs. 394 alleged to be due to him as the person entitled to the Asari Sheriff and to perform the services connected therewith. The Government was paying the sums to the successful party in the previous litigation and sets up the judgment negativing the plaintiff's right as a bar to the suit.

The question is how far and under what circumstances can a judgment in personam be given the force of a judgment in rem or be pleaded as a bar under Sect. 11 Civil Procedure Code in cases where it is pleaded as a defence to an action, by third parties who do not claim under or were not represented by the parties to the original action.

So far as the statute law in this country is concerned, the case is governed by Sect. 11 of the Civil Procedure Code which deals with res judicata, Sects. 40 to 44 of the Evidence Act which deal with the relevancy of judgments of competent Courts and Sect. 43 of the Specific Relief Act which deals with declaratory decrees.

Under Sect. 11 of the Civil Procedure Code one of the conditions precedent to its application is that the former suit should be “between the same parties or between parties under whom they or any of them claim” and the section is a bar to the trial of a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in the previous suit. The section codifies the law in British India as regards the plea of res judicata and, though the principle has been applied to proceedings other than suits (e.g execution proceedings), the essentials required by the section as to identity of the questions involved and parties has not been lost sight of. Sect. 43 of the Specific Relief Act enacts that a declaratory decree passed under the Act is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees. Sects. 40 to 44 of the Evidence Act deal with the relevancy of judgments of Courts of justice. Sect. 40 enacts that the existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. Sect. 41 deals with final judgments, orders or decrees of competent Courts in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, or what is known as judgments in rem, and it states that such judgments, orders or decrees are conclusive proof of the matters specified in the section; and, by virtue of Sect. 4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments. Sect. 42 refers to judgments relating to matters of a public nature relevant to the enquiry and the section states that such judgments, though evidence, are not conclusive proof of that which they state, thus allowing evidence to be given to disprove the facts found in the judgments. Sect. 43 says that judgments, orders or decrees, other than those mentioned in Sect. 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of the Act (e.g, Sect. 13). Sect. 44 enables a party to show that any judgment, order or decree which is relevant under Sects. 40, 41 or 42, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

In dealing with this question, I think the distinction between the effect of a judgment as preventing the Court from trying the same matter in issue in subsequent proceedings and as simply affording evidence of the truth or falsity of the claim under consideration should be borne in mind. In the former case Sect. 11 declares that the Court shall not try the suit or issue and the plea is one in bar to the maintainability of the action. In cases where there is no bar under Sect. 11, the Court has to try the issue and if the judgment is filed for the purpose of proving the plaintiff's claim or for the purpose of proving the defence to the action, it is relevant only as a piece of evidence the probative value of which is regulated by the provisions of the Evidence Act. If it is a judgment in rem, the Court under Sect. 41 of the Evidence Act will treat it as conclusive proof of the matters stated in that section and under Sect. 4 it will prevent evidence from being given for the purpose of disproving the facts established by the judgment in rem. One has only to file the judgment and the Court has no option but to decide the matter covered by it in accordance with the declaration in that judgment, even though the other party may be in a position to prove facts to the contrary. So far as judgments, in rem are concerned, I think the matter is codified by Sect. 41 of the Evidence Act which states what judgments would be judgments in rem so as to make them conclusive proof of the declarations granted by them. It seems to me that it is not open to us, in the face of the sections of the Civil Procedure Code, the Evidence Act and the Specific Relief Act, to hold that judgments not falling within those sections would still be a bar to an action or afford conclusive proof. This, in effect, would be to create new kinds of res judicata and to destroy the distinction between judgment in rem and judgments in personam which has been laid down in Sects. 41 and 42 of the Evidence Act.

In Ramamurti Dhora v. The Secretary of State for India in Council, it was held that the provisions of Sect. 13 of the Code of 1882 were not exhaustive and a judgment was held to be binding on a person who was no party to it on the ground that third parties having no interest in the property at the time of the litigation cannot, in the absence of any fraud or collusion, question the validity of a judgment passed in a suit between the only parties interested in the property at the date of the previous suit. Reference was made to Bigelow on Estoppel, 5th Edition page 44, where the learned author observes “If all who have a right to appear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, binds third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the question should be determined without collusion. Indeed, the difference between judgments in rem and judgments in personam in our law, as regards their effect, appears at bottom to be only a difference of degree.” When a judgment is in personam I can find no authority either in English decisions or recognised works by English jurists holding that it can prevent persons, not parties or privies, from agitating the question except in cases of joint liability and covenants for indemnity. In The Natal Land, and Colonization Co. v. Good, it was sought to Use a judgment between the mortgagor and the person from whom he purchased the property which found that the sale was vitiated by fraud against a mortgagee who was no party to the suit. Their Lordships of the Privy Council observed “Now, the first observation which occurs is that this judgment was not admissible in evidence. It is the only proof of the fraud, but if it were ample and sufficient proof of the fraud, it is res inter alios acta, and in no Court of Law or Equity in this country would it have been admitted at all, except as between the parties to it, the respondents and Crowly, or if a foundation for it had been laid by evidence of some fraud having been committed by which the plaintiffs could be affected.” In Anderson v. Collinson, it was held that a judgment in affiliation proceedings taken by the daughter of the plaintiff holding that it was not proved that the defendant was the father was not final and conclusive in an action for seduction filed by the mother so as to estop the defendant from denying that he was the father of the child as the parties to the two proceedings were different. In Spencer v. Williams, Lord Penzance observed, “It is proper, therefore, where the question is raised between the same parties, or those claiming under them, that they should be estopped; but the decisions give no authority for a proposition of a wider character—that a party who was not a party in the original litigation shall be bound by the result.” The rule was held to apply though the interest of the parties was identical and the same question was involved, namely, whether a person was next of kin and entitled to distribution of assets of the deceased. In Lady Wenman v. Mackenzie, the plaintiff sued for injury to her reversionary right alleging that she was entitled to a fishery in an arm of the sea and was in possession through her tenant Fairman and that the defendant who held the neighbouring property under one Gipps infringed her right. Fairman, her tenant, had filed an action to recover damages for a similar injury against Gipps and the suit was referred to arbitration, and an award made in favour of Fairman. It was held that the proceedings were not evidence as plaintiff “did not claim by, through or under Fairman and, so far as she was concerned, the action of Fairman v. Gipps, was res inter alios acta” and as the proceedings and award could not have been admitted as evidence against her, they are not admissible for her. In Petrie v. Nuttal, it was held that the conviction of a person for barring a highway would not bar a suit by the same person against another for stopping at the road on the ground that the crown and subject were the parties to the indictment and therefore it was not between the two parties to the action and that the judgment in the indictment may be given as evidence upon the trial of the issue as to whether the locus in quo is a public highway; though it cannot be pleaded as an estoppel.

Estoppel must be mutual and it is difficult to see how a party not bound by a judgment can set it up in bar against a party to it.

Turning to the question as to whether a judgment in personam can acquire the force of a judgment in rem under any given set of facts, the only authority which I can find for such a view is the passage from Bigelow already referred to and the decision in Cander v. Lord referred to in Sreenivasa Iyengar v. Arayar Sreenivasa Iyengar as authority for the view taken in that case.

With all respect it seems to me that we cannot travel outside the provision of Sect. 11 of the Code of Civil Procedure and apply the rule of res judicata to cases falling outside the limitation imposed by the section In Gokul Mandar v. Padmanund Singh, their Lordships of the Privy Council observe: “They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not theprovince of a judge to disregard or go outside the letter of the enactment according to its true construction.” In Peari Mohan Shaha v. Durlavi Dassya, the question arose in a suit between an auction purchaser who bought the right of one Durlavi Dassya, and her daughter Patteswari whose suit under Sect. 283 of the Code (relating to suits by an unsuccessful claimant) was dismissed. The suit was filed by the purchaser against the unsuccessful claimant for a declaration of her title and the decree in the previous suit was sought to be availed of as concluding the matter in issue. Jenkins, C. J. and Mookerjee, J. were of opinion that the provisions as to res judicata contained in Sect. 11 of the Code were exhaustive and that judgments in suits between third parties however cogent they might be as evidence where the same matter is in question in a suit by or against a stranger did not operate as a bar to the suit under Sect. 11 of the Code. Jenkins, C. J., observed, “It appears to me that in these circumstances, and having regard to the facts with which we have to deal in this case, the result of that litigation is at least as cogent against the defendant as would have been an instrument of transfer executed by Patteswari, the ostensible owner, in favour of her sons. I wish to make it clear that in the view I take, I cannot regard the decree in the previous litigation as amounting to res judicata which would bar all possibility of evidence on the part of the defendant. It would, I conceive, have been open to the defendant to show that, not with standing that decree, there were circumstances either vitiating the result of that litigation or affecting its result so as to prevent its operation in favour of Patteswari's sons. The learned Judges were not prepared to follow the dictum in Ramamurthi Dhora v. The Secretary of State for India in Council, that the provisions of the Civil Procedure Code were not exhaustive and judgment not inter parties can make the question res judicata. This decision was referred to and followed by the Chief Justice and Seshagiri Aiyar, J. in Second Appeal No. 1747 of 1919. The learned Judges were of opinion that the provisions of the Code as to res judicata were exhaustive and that a judgment not between the same parties or their privies was only evidence of title. They were not prepared to follow Ramamurthi Dhora v. The Secretary of State for India in Council and Suppa Bhattar v. Suppu Sokkayya Bhattar on the ground that the attention of the learned Judges was not drawn to the decision of the Privy Council in Gokul Mandar v. Pudmanund Singh. In the Ramnad Zamindar v. Dorasami which related to a monthly allowance, it was held that a litigation as regards the right to receive the allowance would not estop the Zamindar from putting the party claiming it against him to the proof of his title on the ground that he was not a party to the previous litigation. So far, therefore, as the Civil Procedure Code is concerned, I do not think that the trial of a suit or issue can be barred because of an adjudication in a prior suit or proceeding to which the plaintiff was not a party or privy.

Turning to the Evidence Act, I have already pointed out that Sects. 41 and 42 draw a distinction between Judgments in rem and Judgments in personam and it seems to me to be clear from the sections that a judgment which does not fall within Sect. 41 can only be evidence but cannot be used for the purpose of preventing the other side from proving facts which he sets up.

It is not open to us to import considerations as to convenience in dealing with matters which have been codified and dealt with by Evidence Act however attractive the theory may be and however much one would like to have the principle embodied by the legislature in the codes. It is no doubt true that there are decisions of this Court which adopt the view of Bigelow as to judgments in personam creating an estoppel as against strangers (see Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar Ramamurthi Dhora v. The Secretary of State for India in Council Suppa Bhattar v. Suppu Sokkaya Bhattar and Boyinapalli Venugopala Rao Garu v. Nekkalapudi Venkatrayudu. In the last of these cases it was held that a decision between the plaintiff and another person that the latter is a co-proprietor with him is conclusive on third parties where the contention raised by them depends on the relationship between the plaintiff and such person and the learned Judges followed Srinivasa Aiyangar v. Arayar Srinivasa Ayyangar but they, however, observed that the rule that makes the decision conclusive on third parties was not the rule of res judicata and they based their decision on the ground that it would be intolerable to hold that, when the relationship between the two parties have been determined by litigation between them, other persons can contend that one of them has not the right against the other which he has been held to have.

With all respect it seems to me that these decisions do not take into consideration the effect of the provisions of the Evidence Act and the limitations imposed by a consideration of those sections. To hold that a judgment which does not fall under Sect. 41 is conclusive proof would be to act in direct contravention of the provisions of Sect. 42 which declares that judgment orders or decrees, other than those mentioned in Sect. 41 are relevant but not conclusive proof.

It seems to me that where a judgment in personam is pleaded, its legal effect and probative force will depend upon the facts of each case. As pointed out by Sir Lawrence Jenkins in the case I have referred to, the judgment of a competent Court whereby a declaration is made as regards property in dispute would have the force of a conveyance by the other parties to the suit in favour of the successful litigant. Where, therefore, all the parties interested in the immoveable property or in the right in contest have been parties to the previous litigation it may be that the judgment obtained in the previous litigation would render it impossible for persons to get rid of the effect of the judgment. But this is not because the judgment constitutes res judicata or judgment in rem. The difficulty would be analagous to the difficulty of a person who wants to impeach the title which is conferred on his opponent by all the persons who could have a legal interest in the property with the additional fact that when a judgment is relevant it is not open to a party to show that as between the parties the conclusion arrived at by the judge is wrong and is not warranted by the evidence. The decision in Suppa Bhatter v. Suppa Sokkaya Bhatter may be supported on the ground as all the parties interested were parties to the previous litigation in favour of one of them. Cases where jus tertii is set up are really no exceptions to the rule. In all cases of jus tertii the person who sets up the rights of a third party is bound to prove that the third party has or had the rights alleged and it is always open to the other party so displace the title of the person so set up by showing that he was party to the litigation which has negatived that title. Whatever would estop or bar the persons whose title is set up must also bar the person pleading jus tertii whether the estoppel is by record, deed or in pais. This is the principle on which R. V. Hebden referred to by my lord was decided. The defendant relied on his right to the office of bailiff owing to his having been elected by two former bailiffs. A judgment was produced in which the right of the persons whom he set up was negatived and it was held that having made the title of the previous bailiffs part of his right, there could be no better evidence in disproof other than the judgment where their rights were negatived.

I would held that the decision in the previous suit is not conclusive but is only evidence and that it is open to the plaintiff to establish his title as against the Government and I would answer the question raised by the reference in the affirmative.

K.V.SReference answered in the affirmative.