Sir John Edge, C.J:— The plaintiffs, who are respondents here, on the 31st of August, 1891 instituted two suits in the Court of the Munsif [167] of Ballia. One of those suits was entered in the register as Suit No. 614 of 1891 and the other of those suits was entered in the register as Suit No. 615 of 1891. The register in which they were entered is the register of civil suits prescribed by s. 58 of the Code of Civil Procedure. In suit No. 614 of 1891 the defendants were Musammat Murti, who is the appellant here, Balgobind Ram, Mahadeva Ram, Padarath and Ram Narain. In Suit No. 615 of 1891 the defendants were Musammat Murti, Balgobiod Ram and Mahadeva Ram. Those suits were brought by the plaintiffs in consequence of an order in the execution of a decree of the plaintiffs passed under s. 280 of the Code of Civil Procedure upon an objection made by Musammat Murti under s. 278 of the Code to the execution of the plaintiffs' decree against a mortgage of certain land and against a certain house, alleged by the plaintiffs to have been at the time the property of Balgobind Ram and Mahadeva Ram, which the plaintiffs had attached as property of their judgment-debtors. The suits were brought to establish the right of the plaintiffs to bring the interests mentioned to sale in execution of their decree against Balgobind Ram and Mahadeva Ram. Suit No. 614 related to the mortgagee's interest sought to be sold in execution of the decree. Suit No. 615 related to the house sought to be sold in execution of the decree. In Suit No. 614 of 1891 the mortgagee's interest was valued at Rs. 757-15-3. In Suit No. 615 the house was valued at Rs. 499-15. The two suits were dismissed by the Munsif as being in contravention of s. 43 of the Code of Civil Procedure. On appeal the Subordinate Judge set aside the decree of the Munsif and remanded, under s. 562 of the Code of Civil Procedure, each suit for trial on the merits.

The facts have not been gone into. It has been stated here, but the statement must not be taken as a finding by us, that the land in question was on the 1st of June, 1880 mortgaged by Padarath and Ram Narain to Balgobind Ram and Mahadeva Ram; that on the 17th July, 1885 the same mortgagors made in favor of the same mortgagees a conditional sale-deed of the land and that on the 29th of March, 1890 Balgobind Ram and Mabadeva [168] Ram granted in respect of their interest in the land a sub-mortgage to Mussammat Murti, the appellant. It was also stated here, but it must not be taken as found by this Court, that on the 26th of January 1889 the house in question was sold by Balgobind Ram and Mahadeva Ram to Mussammat Murti. The plaintiffs' decree against Balgobind Ram and Mahadeva Ram was dated the 15th of November 1889. In execution of that decree the plaintiffs on one application for attachment attached the mortgage of the 1st of June, 1880, the mortgage by conditional sale of the 17th of July 1885, and the house. Mussammat Murti by one proceeding objected to the attachment and sale. The question which we have to consider is, were these suits or was one of them barred by s. 43 of the Code of Civil Procedure? There was one objection to the attachment. There was one order made on that objection. That order would be conclusive against the plaintiffs' right to bring the mortgagees' interest in the land or their alleged interest in the house to sale unless a suit allowed by s. 283 of the Code of Civil Procedure were brought by the plaintiffs within the prescribed period.

In order rightly to comprehend what was the cause of action of the plaintiffs and when that cause of action first arose, it is necessary to consider briefly what are the rights which the holder of an executable decree for money has against the unincumbered immoveable property of his judgment-debtor. I take such a case for my illustration as the most simple case which can arise. Such judgment-creditor has by reason of his decree for money no interest or estate in his judgment-debtor's immoveable property. He has no right of suit for a trespass committed on that property. He can, except in the case provided for by s. 283 of the Code of Civil Procedure, bring no suit for a declaration of title that the property is the immoveable property of his judgment-debtor. His sole right is to have that property attached under the Code of Civil Procedure and brought to sale in execution of his decree. On attachment under the Code the property is brought into the custody of the law and any alienation by the judgment-debtor of the property attached [169] made whilst it is under attachment is void as against all claims enforceable under the attachment. If no claim or objection be made under s. 278 of the Code of Civil Procedure, and if there be no other impediment which can be disposed of under s. 244 of the Code, the judgment-creditor is entitled to have the property sold, and subject to the provisions of s. 269 of the Code, he is entitled to have the proceeds applied so far as may be necessary in satisfaction of his decree. Should, however, a claim or objection be made under s. 278 of the Code, such claim or objection must be disposed of in accordance with the procedure prescribed for that purpose by the Code of Civil Procedure and not otherwise. If on the investigation of such claim or objection under the Code of Civil Procedure an order is made under s. 280 of the Code adverse to the judgment-creditor's claim to have the property sold in execution of his decree, his sole remedy is, by reason of s. 283 of the Code, a suit to have his alleged right to bring the property to sale in execution of his decree established; and it is by that section alone that he has a right to bring a suit to have his right to bring the property to sale in execution of his decree declared. In no event other than the making of an adverse order under s. 280 or s. 282 of the Code has the judgment-creditor a right of suit in aid of his application to have his judgment-debtor's property brought to sale in execution of his decree.

In the suit authorized by s. 283 of the Code many questions of title might have to be determined. It might, for example, be necessary to determine in such suit whether a transfer under which the defendant claimed was voidable under s. 53 of the Transfer of Property Act (Act No. IV of 1882). But the judgment-creditor's suit would necessarily be dismissed on the ground that he had failed to prove a cause of action if the allegation of the fact that an order adverse to his alleged right to bring the property to sale had been made before suit under s. 280 or s. 283 of the Code of Civil Procedure was traversed by the defendant and he should fail to prove that such order was in fact made. Unless and until that order was made, the judgment-creditor had no cause of action [170] and no right to sue any one in respect of property which was not his or in his possession, and in which he had no reversionary or other interest. It is obvious from the above considerations that the first essential of the plaintiffs' cause of action was the order made under s. 280 of the Code of Civil Procedure and that until that order was made they had no cause of action. The cause of action, it appears to me, was the order under s. 280 which had been obtained by Musammat Murti and the right and title of the plaintiffs to bring the subjects of the attachment to sale in execution of their decree.

It was held by Lord Bsher, M.R, in Read v. Brown that a cause of action is “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.” Fry, L.J, agreed and said:— “Everything which if not proved gives the defendant an immediate right to judgment, must be part of the cause of action.” In the same case Lopes, L.J, said:— “I agree with the definition given by the Master of Rolls of a cause of action, and that it includes any fact which it would be necessary to prove, if traversed, in order to on able a plaintiff to sustain his action.”

The question of how Musammat Murti might support that order passed under s. 280 and of what different title she might prove in hor defence to the suit, could not, in my opinion, affect the question of what the cause of action was, except in so far as hor defence might put the plaintiffs to proof of their decree, their right to execute it against their judgment-debtors and the title of their judgment-debtors to the property sought to be sold in execution of that decree. A title in Musammat Murti which, when proved, showed that the plaintiff had no cause of action could not, nor could the evidence in support of it, form any part of the cause of action of the plaintiffs. It would be, for instance, quite competent to Musammat Murti to allege, prove in the suit [171] and succeed on a title on which she had not based her objection under s. 278 of the Code of Civil Procedure. She might with regard to different portions of the property allege in answer to the suit an equal number of different titles in herself: for example, she might allege as to one portion of the property that it had come to her by descent; as to another portion of the property that she had purchased it at an auction sale held under a decree against the then true owner; as to another portion of the property that it had vested in her under a deed of gift from the true owner. The title or titles which she might prove form no paid of the plaintiffs' cause of action. Her allegation of different titles in herself to different portions of the property would not split up the cause of action of the plaintiffs into different and distinct causes of action. Their right of suit arose only by means of the order passed under s. 280 which formed part of that cause of action.

Similarly the fact that the plaintiffs' judgment-debtors held or were alleged to hold portions of the property under different titles did not split up into different causes of action the plaintiffs' cause of action. Their cause of action did not arise or become a cause of action until their right to bring the property to sale was obstructed by the order obtained under s. 280 by Musammat Murti.

Section 43 of the Code of Civil Procedure has, it appears to me, nothing to do with the evidence which may be necessary or may be produced to support or defeat an alleged cause of action. It has nothing to do with the desire of a plaintiff to bring more suits than one, or with the devolution of title in the case where the cause of action relates to land or other kind of property. For instance, if A, were the owner of 100 bighas of land and had acquired each of these bighas at a different time and under a different title, and B turned A out of possession of those 100 bighas by a single act of trespass, there would be one cause of action in respect of the whole 100 bighas, although A might desire by a separate suit in respect of each bigha to establish his title to each [172] bigha separately and although, if A did not bring his suit for possession until after the expiration of six months from the date of dispossession by B, it might be necessary for him to prove a different title in himself in respect of each one of those 100 bighas. I am of opinion there was only one cause of action hero and that s. 43 of the Code of Civil Procedure applies.

On behalf of the appellant two authorities of this Court have been relied upon. One is that of Kakshar Prasad v. Jag an Nath and the other was that of Zahur Husain v. Muhammad Hasan. In the first case the learned Judges appear to have thought that the two suits, which were brought on the same day, may have been necessary, and they held that the two suits were simultaneous and not successive and did not apply the rule contained in s. 7 of Act No. VIII of 1859. Those learned Judges may or may not have been right in holding that in that case two suits were necessary. In the other case, viz., that of Zahur Husain v. Muhammad Hasan, to the judgment in which I was a party, there was undoubtedly but one cause of action. The plaintiff brought on the same day two suits against the same defendant. We declined to apply s. 43 of the Code of Civil Procedure. We based our decision on the fact that we were not satisfied as to which of the suits in that case was the first suit. On consideration, I have come to the conclusion that my judgment in that case was based on a wrong principle and that the reason given by me there for not applying s. 43 of the Code of Civil Procedure would open the door to deliberate and continual evasions of the provisions and spirit of s. 43 of the Code of Civil Procedure. For instance, to assume a case, A buys on the same occasion seven different articles from B in B's shop, each article being sold at a price appropriated to itself. If my judgment in Zahur Husain v. Muliammad Hasan were to be acted upon, B might evade s. 43 of the Code of Civil Procedure, by filing on the same day seven suits against A in respect of the price of seven articles sold. It would in such a case be no answer to s. 43 of the Code of Civil Procedure for B to say that A denied [173] the sale of each of the seven articles and B's right to sell them, and that he (B) wished to establish his case in respect of the sale of each article by a separate suit. We have to see what s. 43 enacts and not what the wishes of the plaintiff may be. When the case of Zahur Husain v. Muhammad Hasan was before me, I had not present to my mind the concluding paragraph of s. 58 of the Code of Civil Procedure. I am prepared to hold, and do hold now, that it must be presumed, until the contrary is proved, that the suits were presented and admitted in the order in which their numbers appear in the register. It was contended in argument in this case that s. 43 of the Code of Civil Procedure could not apply because Padarath and Ram Narain were parties as defendants in suit No. 614 of 1891 and were not parties in suit No. 615 of 1891, in which suit and the subject-matter of it they were in nowise concerned. It appears to me that makes no difference. In the first instance, Balgobind Ram, Mahadeva Ram, Padarath and Ram Narain were not any of the objectors to the attachment. Secondly, even if they were necessary parties in a suit relating to the land or the house, that fact would not in my opinion alter the effect of s. 43. The cause of action would still continue to be the same, although it might by way of precaution be necessary to make them parties to the suit in order to bind them by the decree. One of the cases cited in argument was Appasami v. Ramasami and although the judgment in that case was generally in accordance with the view which I have expressed, I cannot agree with the proposition at page 281 of the report, viz., “and one test is whether the same evidence and the same arguments apply in the two cases.” Another case to which we were referred in the argument was that of Duncan Brothers & Co. v. Jeetmull Greedharee Lall. There is nothing in that case inconsistent with the view I have expressed during the argument in this case.

Mr. Gobind Prasad on behalf of the plaintiffs, respondents here, asked us to return the plaints to enable his clients to amend one [174] of the plaints by including in it the whole cause of action and to claim for relief in respect of the mortgage and in respect of house. That is a course which is not open to him. His suits were instituted in the Court of the Munsif whose jurisdiction is limited to Rs. 1,000 in value, and we could not allow an amendment which would have the effect of ousting the jurisdiction of the Court in which the suit was instituted. Mr. Gobind Prasad then asked us to allow him to withdraw the suits under s. 373 of the Code of Civil Procedure with the permission to sue again. Assuming, for the present purposes only, that we have in this appeal from an order power to allow the suits to be withdrawn under s. 373, I am of opinion that we should not give any such permission. As to suit No. 614 of 1891, there is nothing to show that suit must fail by reason of any formal defect. That it bars suit No. 615 is quite another matter, and is in my opinion no sufficient ground for permitting the plaintiffs, who have deliberately chosen to bring two suits, to withdraw from them with permission to sue again. It would be useless to give permission to withdraw suit No. 615 of 1891 and to sue again: as, so long as suit No. 614 of 1891 existed, we could not give permission, having regard to s. 43, for the bringing of a fresh suit in respect of matters to which suit No. 615 of 1891 relates. Mr. Gobind Prasad, also asked for permission to elect as to which suit should be proceeded with and which abandoned. We have do power to give him any right of election. In my opinion we can give no such right to elect. The two suits are on the files of the Court, and being on the files of the Court and being in respect of the same cause of action, the first suit has barred the second. The result is in my opinion that the order of the Subordinate Judge setting aside the decree of the Munsif and remanding under s. 562 of the Code of Civil Procedure, suit No. 614 of 1891 is a right order in law, and the appeal, which is from that order, I would dismiss with costs. Also in my opinion the order of the Subordinate Judge setting aside the decree of the Munsif in suit No. 615 of 1891 and ordering a remand in that suit under s. 562 of the Code of Civil Procedure is a bad order in law. I would allow the appeal from the order in suit No. 615 of 1891, and setting aside the order of the Subordinate [175] Judge in that case, I would restore and affirm the decree of the Munsif dismissing the suit No. 615 of 1891 with costs in all the Courts.

Tyrrell, J.:— I concur, and will only add that Mr. Gobind Prasad for the respondents relied on a judgment of this Court to which I was a party in Muhammad Ibrahim Khan v. Habib-ullah Khan. The view taken in that judgment is in favor of the position that Mr. Gobind Prasad was supporting. That judgment is not reported in the authorized law reports and on close examination I am satisfied it is incorrect.

Knox, J.:— I entertain no doubt whatever as to what was the cause of action in the present case. It was the one and indivisible order passed on the 7th of August 1891, an order which comprehended both the properties which were made the subject-matter of suit No. 614 and suit No. 615. The circumstances under which those properties came into contact with, or, in other words, to be attached by, the respondents are immaterial. They were in no way causes of action forcing the respondents into the Court. The one entire claim has been by respondents split up so as to form two claims, and it becomes necessary to see what effect will result by reason of the provisions of s. 43 of the Code. I concur with the learned Chief Justice that, as nothing has been shown to the contrary, the order in which those suits were admitted upon the register must be deemed to be the order in which they were presented by the respondents and the order in which the respondents sued. The after suit will therefore be suit No. 615, and the portion, of the entire claim which respondents omitted to sue for in suit No. 614 is that portion which s. 43 prevents their suing for ever after. The contention that Padarath and Ram Narain were parties to suit No. 614 and not parties to suit No. 615 is not a sound one. Section 28 of the Code gave respondents ample power to array them in one and the same suit. The law required that one suit should be laid and that being the case, they should have availed themselves of that [176] power. For these reasons I entirely concur in the orders proposed to be passed in both the appeals.

Blair, J.:— I am strongly of opinion that the cause of action is one and indivisible. It is the order of the execution Court upon the objection, of Musammat Murti whereby properties, the subject of this suit, were released from the attachment, and I am unable to see that the fact that such properties were held by the objector under different titles can in any way affect the question as to what is the cause of action. That being so, I am of opinion that the two suits ought not to have been brought. I therefore concur in both the orders proposed to be passed.

Burkitt, J.:— In my opinion plaintiffs had one and only one cause of action, viz., the order of the execution Court releasing all the property which was the subject of Musammat Murti's objection from attachment and declaring that property not to be liable to sale in execution of the plaintiffs-respondents' decree against Balgobind and Mabadeva. That order was a single order covering the whole of the property of whatever kind and by whatever title claimed by Musammat Murti. That being go, the plaintiffs-respondents had but one and the same cause of action as to both the land and the house. They therefore under s. 43 of the Code of Civil Procedure were bound to include in one suit the whole of the claim which they were entitled to make in respect of that single cause of action. As they have chosen to split up their cause of action between two suits they must now take the consequences. I fully concur in the judgment just delivered by the learned Chief Justice and in the orders passed by him as to suits Nos. 614 and 615.

Aikman, J.:— On the facts of this case I should hesitate to hold that there is anything in s. 43 to prevent the plaintiffs-respondents bringing two separate suits. The plaintiffs wished to bring to sale in execution of their decree two different properties which, they alleged, belonged to the judgment-debtors. They found themselves resisted by the mother of the judgment-debtors. Her resistance was based on two grounds:—First, that she was the mortgagee of one of [177] the properties, and next, she was the vendee of the other. These two transactions of the mortgage and sale were different transactions executed in her favour by her sons on different dates. The plaintiffs' case was that each of these two different transactions were merely colorable. Had the suit referred to in s. 283 of the Code of Civil Procedure been described as a suit to set aside the order in the execution department and had one order been passed, I should have had no hesitation in holding that only one suit would lie. But the suit referred to in s. 283 is described as a suit to establish the right which the plaintiff claims to the property in dispute. The right claimed by plaintiffs in this case was to bring two different properties to sale. His case was that his right was being defeated by two different colorable transactions, and I am of opinion that it was open to him to attack each of these transactions in a separate suit. Supposing Musammat Murti had failed in asserting her title, the judgment of Oldfield, J., in the case referred to by my brother Tyrrell, Muhammad Ibrahim Khan v. Habib-ullah Khan, would be an authority for holding that she could have brought separate suits, although she filed only one objection which had been overruled by one and the same order. If so, I do not see why the decree-holders should not be entitled to bring two separate suits. It is true that it was the order in the execution department which necessitated their bringing the suits, but on the case setup by them their real causes of action were the two different transactions entered into by the judgment-debtors with their mother. On this view of the case I would dismiss the appeals.

If I could told that s. 43 applied and that plaintiffs could not bring two suits, I should concur in all the rest of the judgment of the learned Chief Justice and in the orders proposed by him.

Appeal No. 89 dismissed.

Appeal No. 90 decreed.