Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. The plaintiff brought this suit to establish his right tosell the property in dispute in satisfaction of a decree against one Ram MohunRoy, which he had purchased; and he alleged in his plaint that upon theattachment by him of the said property in execution of that decree, a claim waspreferred by the defendant, upon which the property was released in May 1889.

2. The defence was that the property did not belong to thejudgment-debtor; that it belonged to the defendant; and that the plaintiff wasnot entitled to maintain the suit, as he had on a former occasion unsuccessfullyinstituted a similar suit against the defendant for obtaining a declarationthat the property in question belonged to the judgment-debtor.

3. The Courts below have overruled the objections raised bythe defendant and found that the property belonged to the judgment-debtor ofthe plaintiff; and they have accordingly decreed the suit.

4. On second appeal it is contended on behalf of thedefendant--first, that the suit is barred by Sections 13 and 373 of the Code ofCivil Procedure; and secondly, that the decision on the merits in favour of theplaintiffs is wrong in law, as the only evidence on which that decision isbased is a recital in a document, which recital is inadmissible in evidenceagainst the defendant.

5. The facts upon which the first contention is based areshortly these.

6. The plaintiff in execution of a decree held by himagainst the judgment-debtor Ram Mohun Roy, attached the property now indispute. Thereupon a claim was preferred by the present defendant, and theproperty was released. The present plaintiff then brought a suit to establishhis right to sell the property in execution of his decree, and that suit theplaintiff withdrew without leave to bring a fresh suit. It is thereuponcontended, in the first place, that Section 13 of the Code bars the suit, andthat as in the former suit the plaintiff sought to establish the right of hisjudgment-debtor Ram Mohun Roy, to this property, and as he did not obtain anydecree in that suit, it must be held, under the third explanation to Section13, that the relief that was claimed had been refused; and it is furthercontended that even if Section 13 is not applicable, the present suit is barredunder Section 373 of the Code of Civil" Procedure, it being a suit for thesame matter as that for which the former suit was brought. With regard to thefirst part of this contention it is enough to say that Explanation IIIevidently contemplates a decree being passed which does not expressly grant acertain relief, and it lays down that such relief must in that case be deemedto have been refused. In the present case the former suit did not result in anydecree. That suit was not heard and determined, but was allowed to bewithdrawn, though without leave to bring a fresh suit. That being so, Section13 can have no application in this suit.

7. The only question then is, whether Section 373 of theCode is a bar to the present suit. That section provides that if the plaintiffwithdraws from the suit without permission to bring a fresh suit, he shall beprecluded from bringing a fresh suit for the same matter. Now, though theproperty in respect of which the present suit is brought is the same as that inrespect of which the former suit was brought, still that would not besufficient to make the present suit one for the same matter as that for whichthe former suit was brought, within the meaning of Section 373. The object ofthe former suit was to establish the plaintiffs right to bring to sale certainproperty which no doubt was the same as that in dispute now, and his cause ofaction was the release of that property from attachment upon a claim beingpreferred by the present defendant. The object of the present suit is toestablish the present plaintiffs right to bring to sale the same property, butin execution of a different decree, and we may observe, a decree originallyobtained by a third party, who has transferred it to the plaintiff; and thecause of action in the present suit is different, arising from an order passedon a different claim case. That being so, we think the present suit is not forthe same matter as that for which the former suit was brought. It may be quitetrue that the main issue to be tried in the present suit is the same as thatwhich was the main issue to the former suit, but that would not make thepresent suit one for the same matter as that for which the former suit wasbrought. If the former suit had been heard and determined, and if Section 13was in consequence applicable to this suit, such an issue tried in the formersuit might have operated as res judicata in the present suit; but that is notthe case here.

8. Then as to the second contention, the evidence objectedto as being inadmissible against the defendant-appellant is a recital in akobala in favour of the defendant, under which he alleges he has acquired titleto the property in dispute; and that recital is an admission by the defendantsvendor that the property in dispute had previously been conveyed by him to theplaintiffs judgment-debtor. That being so, we think it is clearly admissiblein evidence against the defendant.

9. The objections urged before us therefore both fail, andthis appeal must accordingly be dismissed with costs.

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Ram Nath Chuckerbuttyvs. Kamini Kant Roy (04.08.1893 -CALHC)