Abdul Majid vs. Dev Narain, I. L. R., 16 Cal., 233, and see Bal Kishan vs. Kishan Lal,
I. L. R., 11 Alla., 148.

Where the previous Suit is the basis of the second Suit.-In some instances the first suit was dismissed, the Court finding a state of facts which would entitle the plaintiff to relief had he properly framed his suit. In that case a second suit claiming such relief will not be barred. See Varathayyangar vs. Krishnasami, I. L. R., 10 Mad., 102; where the first suit was for possession, the second for redemption, and a similar decision in Ramkisto vs. Nemy, W. R., 1864, p. 110. In Watson vs. Dhonendra, I. L. R., 3 Cal., 6, the first suit was for use and occupation, the second for rent under a lease. In Shivram vs. Narayan, I. L. R., 5 Bom., 27, and Konerrav vs. Gurrav, I. L.R., 5 Bom., 589, the first suit was for possession, the second for partition. In Chooneelal vs. Munnoo, 13 W. R., 343, the first suit was for possession, the second to set aside a sale in execution. In Naro vs. Ramchandra, I. L. R., 13 All., 326, the first suit was to redeem, the second to eject. See also Rajah Sheoraj vs. Rajcoomar, 24 W. R., 23; and Amir vs. Nathu, I. L. R., 8 Alla., 396. And in the second suit, the defendant will not be allowed to contest the propriety of the grounds upon which the first suit was dismissed, he having had the advantage of such dismissal-Lakshman vs. Ram Chandra, I. L. R., 5 Bom., 48; Ali Moidin vs. Kombi, I. L. R., 5 Mad., 239; but see Kudrat vs. Dinu, I. L. R., 9 Alla., 155. See this decision explained in Sukh Lal vs. Bhiki, I. L. R., 11 Alla., 187. As to the effect of previous decrees not reversed, see Naranjee Bhikabai vs. Dipanmed, I. L. R., 3 Bom., 3. As to when a decree will be considered to have been superseded and no longer binding, see Shama Pershad vs. Hurro Pershad, 10 Moore, 203; Jogesh Chunder vs. Kally Churn, I. L. R., 3 Cal., 30; Mahomed vs. Kally Mohun, I. L. R., 5 Cal., 589; Narayana vs. Narayana, I. L. R., 13 ¡Mad., 437; Waghela vs. Mashudin, I. L. R.. 13 Bom., 330.

"Between the same parties, or between parties under whom they or any of them Claim."-A decree against a Hindu widow will bind the reversionary heirs-Nand Kuar vs. Radha Kuari, I. L. R., 1 Alla., 283; Pertabnarain vs. Triloknath, I. L. R., 11 Cal., 186; 11 Ind. App., 207; and Katama Nachiar vs. Shiragunga, 9 Moore, 543; and a decree against the Kurta of a Mitakshara joint family may bind the whole family-Narayun vs. Pandurang, I. L. R., 5 Bom., 685; distinguished in Ram Narain vs. Bisheshar, I. L. R., 10 Alla., 411. A decree against a tenant for life may bind the estate-Pertabnarain vs. Trilokinath, I. L. R., 11 Cal., 186. A decree against a vatan holder-Radhabai vs. Anantrav,I. L. R., 9 Bom., 198; or against a Shebail-Golab Chand vs. Prosono Coomaree, 20. W. R., 86, or against a Karnem-Venkayya vs. Suramma, I. L. R., 12 Mad., 235, is binding on his successor. A decree against a Benameedar will bind the real owner Khub Chand vs. Narain Singh, I. L. R., 3 Alla., 812; Gopi Nath Chobey vs. Bhugwat, I. L. R., 10 Cal., 697. As to the effect of a decree against the Karnavan of a tarwad, see Thenju vs. Chimmon, I. L. R., 7 Mad., 413; Ittiachan vs. Velappan, I. L. R., 8 Mad., 484. See, however, Sankaran vs. Parvathi, I. L. R., 12 Mad., p. 437.

A revenue-auction purchaser is not bound by a decree obtained against his predecessor-Radha vs. Rakhal, I. L. R., 12 Cal., 82, p. 84. The dismissal of a suit brought by a decree-holder under section 283 of the Code of Civil Procedure against the successful Shivappa vs. Dod Nagaya, I. L. R., 11 Bom., 114, p. 82; see also Guruva vs. Subbarayudu, I. L. R., 13 Mad., 366. A decree against a mortgagor will not bar a mortgagee whose title arose prior to suit-Sita Ram vs. Amir Begam, I. L. R., 8 Alla., 324; Rambrohmo vs. Bungsi, 11 C. L. R., 122. A decree against a registered tenant will not bind the real owner unless he claims through the registered tenant-Ram Narain vs. Ram Coomar, I. L. R., 11 Cal., 562. After obtaining a decree for redemption, the mortgagor sold his interest in the mortgaged property. Held, the assignee could bring another suit for redemption-Karuthasami vs. Jaganatha, I. L. R., 8 Mad., 478; Roy Dinken vs. Sheo Golam, 22 W. R., 172; but see in Bombay, Chudasama vs. Mahani, I. L. R., 16 Bom., 243. A decree in favour of a ryot against a lessee will not bar a suit by the lessor against the ryot-Shaikh Wahid Ali vs. Naseth Tooraho, 24 W. R., 128. A previous decision against one member of family suing to recover his own share of certain property will not bar a suit by the receiver in the name of the whole family to recover the whole property-Juggonath vs. Hogg, 12 W. R., 117; nor a subsequent suit by another member of the family-Jogendro vs. Funindro, 14 Moore, 367; nor does a suit for maintenance against a father bar a second suit for maintenance against an elder brother after the father's death, where the maintenance is claimed in a different right-Ahmad Hossein vs. Nihaluddin, I. L. R., 9 Cal., 945. In Ananda vs. Paliyil, I. L. R., 5 Mad., 9, the plaintiff sued his tenant (B) and B's alleged under-tenant (C) for possession. C's defence was that he was in possession as tenant of D and not of B, and the suit was dismissed as against him. Held, that a second suit for possession against C and D was not barred. But see Gopal Dass vs. Gopee Nath, 12 C. L. R., 38.

As to judgments in rem, see Kanhya vs. Radha, 7 W. R., 338; Jogendro vs. Funindro, 14 Moore, 367. A decree of the Probate Court establishing a will is only conclusive in rem 3

O'K., CIV. P.

as to those findings which are necessary for the decree-Concha vs. Concha, 11 App. Cas., 541, and to that extent only is a decree against an executor binding on the legatees under a will-Concha vs. Concha, 11 App. Cas., 541; and the latter are entitled to show that the decree has been fraudulently obtained-Ahmedbhoy vs. Vallubhoy, I. L. R., 6 Bom., 603.

"In a Court of Jurisdiction competent to try such subsequent Suit or the Suit in which such issue has been subsequently Raised."-This clause did not appear in Act X of 1877. It was inserted to counteract the effect of the decision of the High Court of Bengal in Run Bahadur Sing vs. Lucho Koer, I. L. R., 6 Cal., 406, but was unnecessary. See S. C. on appeal, 12 Ind. App., 23; Í. L. R., 11 Cal., 301. Edun vs. Bechun, 8 W. R., 175, is still the leading case. There Edun sued Bechun for rent in arrear, Rs. 3,500, in the Collector's Court, under section 23, Act X of 1859. Defence, that only Rs. 756 were due, the remainder of the Rs. 3,500, having been applied in reduction of a bond-debt due from Edun to Bechun. The Collector found the bond to be a genuine bond, and gave Edun a decree for Rs. 756 only, which decree was upheld by the High Court on special appeal. Bechun then sued Edun in the Civil Court to recover the amount remaining due on the bond; Edun denied that the bond was genuine, and it was held that she was entitled to raise that defence notwithstanding the finding of the Collector in the previous suit. The grounds of the decision are-(1) the two Courts were not Courts of concurrent jurisdiction; and (2) the genuineness of the bond was only incidentally or collaterally in issue in the suit for rent. The same point was decided in Teka itnee Goura Coomaree vs. The Bengal Coal Co., 13 W. R., 129. Similar decisions were given in Poholi vs. Fukeer Chunder, 12 W. R., 290; and in Inayat Khan vs. Rahmat Bibi, I. L. R., 2 Alla., 97, where the first suits were cognizable by a Small Cause Court, and the second were not. (See also Manappa vs. McCarthy, I. L. R., 3 Mad., 192.) And in Run Bahadur Singh vs. Lucho Koer, I. L. R., 11 Cal., 301, where the first suit was brought in the Moonsiff's Court. Where A sued B and C on a joint and several promissory note, and the claim was decreed against C, but dismissed against B on the ground of want of jurisdiction; a subsequent suit on the note against B was not barred-Sreeram Mitter vs. Nobin Kisto, 22 W. R., 290. A sued B in the Moonsiff's Court for possession of a house. Cwho intervened and was made a defendant claimed the house under a deed of gift of that and other property. The suit was dismissed in the Court of first instance, but decreed in appeal. C then sued A in the Subordinate Judge's Court (the Moonsiff's Court not having jurisdiction) to recover all the property included in the deed of gift; held, that the claim to the house but not to the other property was res judicata-Pathuma vs. Solimamma, I. L. R., 8 Mad., 83.

On an application for execution of a decree, the Court is not competent to try finally whether the applicant is the legitimate son of the deceased decree-holder, and a decision of the question on such application will not prevent its being raised in a subsequent suit-Abedooninna vs. Ameeronnissa, 4 I. A., 75.

The two Courts must have concurrent juris liction as regards the pecuniary limit as well as the subject-matter-Misir vs. Sheo Baksh, I. L. R., 9 Cal., 43; 9 Ind. App., 197;—Run Bahadoor vs. Lucho, I. L. R., 11 Cal., 301; 12 Ind. App., 27; Pathuma vs. Salimamma, I. L. R., 8 Mad., 83; and the extent of the jurisdiction depends on that of the Court in which the first suit was instituted-Mahomed vs. Beer Chunder, I. L. R., 8 Cal., 470; Bholabhai vs. Adesang, I. L. R., 9 Bom., 75; Govind vs. Dhondbarav, I. L. R., 15 Bom., 104, at the time the first suit was brought-Gopi Nath vs. Bhugwat, I. L. R., 10 Cal., 697; Rughunath vs. Issur Chunder, I. L. R., 11 Cal., 153. Where A sued B in the Assistant Judge's Court to recover Rs. 120, money wrongfully exacted from the plaintiff as enhanced rent, and the suit was dismissed on the ground that the plaintiff was bound to pay the enhanced rent; that decision did not bar A from bringing a subsequent suit in the District Judge's Court to recover Rs. 689 on similar allegations-Bholabhai vs. Adesang, I. L. R., 9 Bom., 75.

Declaratory Decree.-For the purposes of jurisdiction the value of a suit for a mere declaratory decree must be taken to be what it would be if the suit were one for possession of the property-Ganapati vs. Chathu, I. L. R., 12 Mad., 223.

Revenue Courts.-The Revenue Courts under Act X of 1859 were Courts of limited jurisdiction, and could not make binding declarations of right or finally determine questions of title-Hurri Sunker vs. Muktaram, 15 B. L. R., 238: 24 W. R., 154; but the Courts trying rent suits under Act VIII (B. C.) of 1869 had full power to do so within the limits of their jurisdiction as Civil Courts-Mohima Chunder vs. Asradha, 15 B. L. R., 251, note; Bemolasoondury vs. Punchanun, I. L. R., 3 Cal., 705; Govind Chunder Koondoo vs. Taruck Chunder, I. L. R., 3 Cal., 145; Hussun Lal vs. Chundee Dass, I. L. R., 4 Cal., 686; see also Dinomoyi vs. Anungo, 4 C. L. R., 599.

A decision of the Revenue Courts, if on a matter within their jurisdiction, will bar a suit in the Civil Court in respect of the same matter. See Amir Singh vs. Naimati, I. L. R., 9 Alla., 388; Ragava vs. Rajah Gopal, I. L. R., 9 Mad., 39; Lodhi vs. Ishri, I. L. R., 6 Alla., 295; Amrit vs. Balbir, I. L. R., 6 Alla., 68; Mahip vs. Cholu, I. L. R., 5 Alla., 429; Radha vs. Rai, I. L. R., 5 Alla., 245; Wazir vs. Gauri, I. L. R., 4 Alla., 412; Har Sahai vs. Maharaj, I L. R., 2 Alla., 294; Shimbhu vs. Bachcha, I. L. R., 2 Alla., 200; Gunga vs. Beni, Ï. L. R., 7 Álla., 148; Tika vs. Khuda, I. L. R., 7 Alla., 191 ;

Venkatachalapati vs. Krishna, I. L. R., 13 Mad., 287; and see Gokhul Sahu vs. Gobind Sahu, I. L. R., 17 Cal., 721. Otherwise not-Ajudhia vs. Sheodin, I. L. R., 6 Alla., 403; Waris vs. Muhammad, I. L. R., 8 Alla., 552; Ashgar vs. Ihanda, I. L. R., 2 Alla., 839; Harika vs. Sri Vidya, I. L. R., 7 Mad., 61.

Civil Court's Jurisdiction under Special Acts.-An award as to the apportionment of compensation under Act X of 1870, section 40, is final and binding on the parties in whose presence it is passed-Nilmoney vs. Rambundhoo, I. L. R., 4 Cal., 757; but a decision under section 39 of Act X of 1870, is not res judicata in respect of the title to portions of the property not taken up under the Act?-Nobodip vs. Brojendro, I. L. R., 7 Cal., 406 (compare Ram Chunder vs. Madho, I. L. R., 12 Cal., 484, 12 Ind. App., 188; where the first decision was passed in the ordinary jurisdiction of a Civil Court). The dismissal of an application under section 63 of the Administrator-General's Act II of 1874, for an order for the payment of money-Smith vs. Secretary of State, I. L. R., 3 Cal., 340; and the dismissal of an application under section 55 of the National Debt Act, 1870, for the transfer of stock-In re May, 28 C. D., 516, will bar a subsequent application. Otherwise where an application for the guardianship of a minor is made under Act IX of 1860-Nehalo vs. Nawal, I. L. R., 1 Alla., 428, the decision would not prevent a regular suit for recovery of possession of the minor-Krishna vs. Reade, I. L. R., 9 Mad., 31.

Criminal Courts.-The finding of a Criminal Court, that A had abducted B is not res judicata in an action for damages brought against A by B's father-Ram La vs. Tula Ram, I. L. R., 4 Alla., 97. The adjudication by a Magistrate that a street is a highway does not bar a regular suit to declare it is private property. See the Q. vs. Hutchins, 6 Q. B. D., 300; but his decision as to possession under section 530 of the Code of Criminal Procedure is final-Lillu vs. Annaji, I. L. R,, 5 Bom., 387.

Foreign Court-The word "Court" includes a foreign Court-Balabhat vs. Narhabhat, I. L. R., 13 Bom., 224.

Heard and Decided.-If the matter in issue in the first suit has been heard and decided it is a bar although the subject matter is different-Radhamadhub vs. Monshur 15 Ind. App., 97; Ananta vs. Damodhar, I. L. R., 13 Bom., 25; but if it has not been heard and decided, the previous suit will not be a bar-Becharji vs. Pujaji, I. L. R., 14 Bom., 31; Radha Prasadh vs. Lal Sahab, I. L. R., 13 Alla., 53, p. 62; 17 Ind. App., 150; Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510. Thus, where a regular suit under section 283 of this Code has been dismissed on the ground that the attachment complained of had been removed, a second suit on title under section 283, after and in consequence of a second attachment will not be barred-Kasinath vs. Ramchandra, I. L. R., 7 Bom., 408, and see Ibrahembhai vs. Kabulabhai, I. L. R., 13 Bom., 72. Where, on remand, none of the parties appeared on the day fixed for hearing-Roghonath vs. Ram Coomar, 14 W. R., 81; or where the first suit was dismissed under section 27, Act VIII (B. C.) of 1869-Brindabun vs. Dhununjoy, I. L. R., 5 Cal., 246 (as to the present law see Ramdhan vs. Ram Kumar, I. L. R., 17 Cal., 926) or under section 10, cl. (iii) of the Court Fees Act-Muhammed vs. Nabian, I. L. R., 8 Alla., 282; or for default in paying fees; but not under section 158, infra-Shaikh Saheb vs. Mahomed, I. L. R., 13 Mad., 510; or under section 102, post-Chand Koer vs. Partab Singh, 15 Ind. App., 156; or under section 381 of this Code-Rungrav vs. Sedhi Mahomed, I. L. R., 6 Bom. 482; or for non-joinder of parties-Pursun vs. Pornanund, 21 W. R., 272; or for multifariousness-Futteh Singh vs. Luchmee Kooar, 21 W. R. 105; or because the property sued for was wrongly described in the plaint-Shokhee vs. Mehdee, 9 W. R., 327; or for want of notice under section 132, Act VI of 1882-Ramireddi vs. Subbareddi, I. L. R., 12 Mad., 500, the subsequent suit was not barred. See also Nanda, vs. Bonomali, I. L. R., 11 Cal., 544. See the cases collected under Watson vs. The Collector of Rajshaye, infra. But in Kudrat vs. Dinu, I. L. R., 9 Alla., 155, A sued B for exclusive possession of certain lands or (in the alternative) for joint-possession. Issues were framed, and the case was tried. The third issue was whether the plaintiff could claim alternative relief. On this issue alone judgment was given, and the suit dismissed. Held, a subsequent suit for joint-possession was barred as res judicata. See this decision explained in Sukh Lal vs. Bhikhi, I. L. R., 11 Alla., 187; Ganesh vs. Kalka, I. L. R., 5 Alla., 595. And when a suit was wholly dismissed, but the decree contained a clause giving liberty to sue again for one-third of the subject-matter: Held, the lease was void and the decision operated as a res judicata-Sukh Lal vs. Bhikhi, I. L. R., 11 Alla., 187; but see Avala vs. Kappes, I. L. R., 8 Mad. 77.

In Jenkins vs. Robertson, L. R., 1 H. L.; S. C., 117, the first suit was brought on behalf of the public for a declaration that the public had a right of way over the defendant's land, and a consent decree was passed to the effect that the public had not a right of way. A second suit identical with the first held not barred. See also Keshava vs. Rudran, I. L. R., 5 Mad., 259, where the first suit was decided on the oath of the plaintiff with defendant's consent; and see Thenju vs. Chimmu, I. L. R., 7 Mad., 413.

In Parthasaradi vs. Chinna, I. L. R., 5 Mad., 304, the first suit was brought by members of the Tenkalai sect against the Vadakalai sect, to have the idols of the defendants removed from a particular spot, and to prohibit them from celebrating festivals and erecting any temple in the village for the worship of their idols. Decree, that the

defendants be prohibited from erecting a temple or instituting public worship on the piece of ground objected to by the plaintiffs, and which lay within the range of their temple, that is to say, within the usual range of the processions conducted in connection with the temple worship. In a subsequent suit for the removal of a temple which the defendants had built on another piece of ground (their own property), within “ range of plaintiffs' temple. Held, that the former decree was not res judicata.

Where a matter has been heard and determined, and a decree obtained by plaintiff which owing to his own fault cannot be executed, a subsequent suit will not lie-Hossein vs. Musund, 18 W. R., 261. Similarly, where the execution of the decree has become barred by limitation-Ram Jus vs. Ram Narain, 2 Alla., 382.

In Watson vs. The Collector of Rajshahye, 13 Moore, 160, the plaintiff sued for possession. After issues were framed, the plaintiff failed to produce evidence in proof of his claim, and the suit was dismissed. Held, that a second suit for the same relief was barred as res judicata. See also Sahadeo vs. Nokhid, 15 W. R., 573; Venketachatam vs. Mahalakshamamma I. L. R., 10 Mad. 272; Mofizooddeen vs. Amooddeen, 23 W. R., 58; Kartick Chunder vs. Sridhar, I. L. R., 12 Cal., 563.

Jurisdiction.-Where the first suit has been dismissed on the ground of jurisdiction, the second suit will not be barred-Ram Gobind vs. Mungur, 13 C. L. R., 83; Lakshman vs. Chandra, I. L. R., 5; Bom., 48; even though the plaintiff might have given the Court jurisdiction by obtaining a certificate under the Pensions Act of 1871-Pictali vs. Tulja, I. L. R., 3 Bom., 223; or by applying to the High Court-Subba vs. Rama, 3 Mad., 273; or to the Collector-Pattaravy vs. Andimula, 5 Mad., 419. But see Hari, vs. Ganpatrao, I. L. R., 7 Bom., 272.

Nominal Party: no Relief.-And where in a suit for redemption it was held that A was not a necessary party and under no obligation to make a defence, this decision did not bar a plaintiff claiming through A following the property-Pattappa vs. Timmaji, I. L. R., 14 Bom., 176, and the same rule applies if the party is merely nominal, against whom no relief is asked-Rahmubhoy vs. Turner, I. L. R., 14 Bom., 408. Where a suit was brought against two defendants, and the liability of one only was determined, and a decree given against him, a second suit against the other defendant was held not to be barred-Shib Nath vs. Nobo Kissen, 21 W. R., 189. Where the name of the intervenor in a suit was ordered to struck off the record, but by mistake was not, a subsequent suit by the intervenor will not be barred-Kalee Coomar vs. Pran Kishor, 18 W. R., 29; nor will a subsequent suit be barred where the decree in the first suit expressly reserves all questions between the intervenor and the plaintiff in the second suit-Mobaruck vs. Gobind, 18 W. R., 61. See also Kanai vs. Soshi, I. L. R., 6 Cal., 777; Rughoonath vs. Juggut, I. L. R., 7 Cal., 214; Gridhur vs. Dayabhar, I. L. R., 8 Bom., 174; but see Sukh Lall vs. Bhikhi, I. L. R., Alla., 187. As to the effect of a decree against the wrong party, see Webb vs. Wright, 8 App. Cas., 318, p. 321.

"Interlocutory orders, and orders in Execution-proceedings. These are, if not appealed from binding on the parties to the suit in all subsequent proceedings in that suit, on principles analogous to those of res judicata strictly socalled. Thus, a decision declaring (though erroneously) that an application for execution is not barred by limitation is final if not appealed from-Mangul Pershad vs. Grija Kant, I. L. R., 8 Cal. 51; 8 Ind. App., 123; Manjunath vs. Venkatesh, I. L. R., 6 Bom., 55; Sher Singh vs. Daya Ram, I. L. R., 13 Alla., 564,; and a construction put upon a decreee in execution-proceedings is binding-Kali Mundul vs. Kader, 6 C. L. R., 215; Huro vs. Jugobundhoo, I. L. R., 6 Cal., 203; Ram Kirpal vs. Rup, I. L. R., 6 Alla., 269 11 Ind. App., 37; Peareth vs. Marriott, 22 C. D., 182; and cannot be set a side at a later stage of the proceedings-Bani Ram vs. Nanhumal, I. L. R., 7 Alla., 102; 11 Ind. App., 181; but the effect of the previous order will be confined to the point actually contested-Sheik Budan vs. Ramchandra, I. L. R., 11 Bom., 537; Dinkee vs. Hari, I. L. R., 14 Bom., 206. If a judgment-debtor allows joint decree-holders to issue out separate execution, he cannot subsequently object that the application was not in accordance with law-Nanda Rai vs. Raghunandan, I. L. R., 7 Alla., 282; and where a Judge has issued a sale certificate, his successor should not decide that the order was illegal-Vithal vs. Vithojirav, I. L. R., 6 Bom., 586.

:

Where an interlocutory order or order in execution properly so-called has not been made, and the Court merely declined to entertain the application, a subsequent application will not be barred-Delhi Bank vs. Orchard, I. L. R., 3 Cal., 47; and see Gour Moni vs. Jugut Chandra, I. L. R., 17 Cal., 57; Hurosoondarry vs. Jugobundhoo, I. L. R., 6 Cal., 203, and although a Judge cannot return an order for discovery made by his predecessor, he can issue new orders according to circumstances-Presney vs. Mayor, W. N., 1883, p. 114; and see Birmingham Land Coy., vs. North Western Ry., 34 C. D., 261, p. 277.

Co-Defendants." Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication-Cottingham vs. Earl of Shrewsbury, 3 Hare, 627; and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiffs and the defendants.

But for this effect to arise there must be a conflict of interests amongst the defendants, and a judgment defining the real rights and obligations of the defendants inter se -West, J., in Ramchandra vs. Narayan, I. L. R., 11 Bom., 216. No such adjudication can take place where the plaintiff's suit has wholly failed - Keran vs. Crawford, 6, C. D., pp. 41, 42. See accordingly-Brojo Behari vs. Kedar Nath, I. L. R., 12 Cal., 580, and cases there cited; Bhagwant vs. Tej Koar, I. L. R., 8 Alla., 91 (Bissorup vs. Gorachand, I. L. R., 9 Cal., 120, is of doubtful authority). In Surender Nath vs. Brojo Nath, I. L. R., 13 Cal., 352; and Khelut vs. Kishen, 16 W. R., 128, the first suit, though decreed in favour of the plaintiff, was held not to cause a res judicata as between the defendants. See, however, Shadal Khan vs. Aminullah Khan, I. L. R,, 4 Alla., 92, (compare Bhagwant vs. Tej Kuar, I. L. R., 8 Alla,, 91). There, A (a Mahommedan widow of B) sued for her share in B's estate, making her son C a defendant. The defendants other than C, (who supported the plaintiff's claim,) denied that the plaintiff had been married to B. The suit was decreed in favour of the plaintiff, the Court finding that she was the widow of B. In a subsequent suit by C against his co-defendants in the former suit, held that the question, whether A was the widow of B, was res judicata; similarly, Venkayya vs. Narasamma, I. L. R., 11 Mad., 204. See Chandu vs. Kunhamed, I. L. R., 14 Mad., 324. As to the effect of a decree for partition, see Sheikh Koorshed vs. Nubbee, I. L. R., 3 Cal., 551; and Himat Ali vs. Wáli-un-nessa, I. L. R., 12 Alla., 506. See the "CO-DEFENDANTS," section 147.

Explanation II-In a suit on a mortgage bond, the mortgagors set up a specific agreement to have the rents due by the mortgagee set off as against the debt. The mortgagors failed, and the mortgagee obtained relief without any deduction of rents. The mortgagors subsequently got decrees for rents. The mortgagee sold the property under their decree and purchased with sanction of the Court. The mortga gors then sued to set aside the sale on the ground that they had an equity to have an account taken for the years to 1871 to 1874 and the rents credited against the debt. It was held that their equity should have been raised in the former suit.-Mahabir Pershad vs. Macnaghten, 16 Ind. App., 107; I. L. R., 16 Cal., 682. See also the remarks of Sir Barnes Peacock in the case of Thakur Shankar vs. Dya Shankar, 15 Ind. App., 66, p. 71.

A redemption decree simply declared the amount of the debt due under the mortgage; but provided no time within which it should be paid or the mortgage foreclosed. Subsequenty the mortgagee sued to recover his mortgage debt personally from the mortgagors and to sell the mortgaged property. Held, the claim to sell was prohibited by this explanation-Maloji vs. Sagaji, I. L. R., 13 Bom., 567; and see Chudasama vs. Mahani, I. L. R., 16 Bom., 243.

Explanation III.-In Luteefoonissa vs. Luckceemonee, Marsh, 93, the first suit was for possession of land and wasilat from 1253, the date of plaintiff's dispossession. Decree for possession, and wasilat from the filing of the plaint. Second suit for wasilat from 1253 to filing of plaint, held barred as res judicata. A suit for possession of property and his suit was dismissed, though he had proved a title to one-third with leave to bring another suit for the one-third. It was held that the leave was inoperative, and the decision was res judicata in regard to the one-third-Sukh Lal vs. Bhikhi, I. L. R., 11 Alla., 187; and see note under section 373, post. A suit for possession and mesne profits until recovery of possession was decreed giving plaintiff possession with mesne profits up to the date of the suit only. It was held not to bar a subsequent suit for mesne profits accruing after the date of suit—Mon Mohan vs. The Secretary of State, I. L. R., 17 Cal., 968; and see Ramabhadra vs. Jagannatha, I. L. R. 14 Mad., 328. A sued for future maintenance, but in the decree founded on a compromise the date of payment was not given, and it could not be executed. It was held a second suit would not lie.-Venkanná vs. Aitamma, I. L. R., 12 Mad., 183. See Denobundhoo vs. Kristomonee, I. L. R., 2 Cal., 152; Becharji vs. Pujaji, I. L. R., 14 Bom., 31. See in connection with this last case, Fatmabai vs. Aishabai, I. L. R., 13 Bom., 242.

Explanation IV.-Final Decision.-"When the judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata and becomes res sub-judice; and if the Appellate Court declines to decide that issue, and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to a future suit than it would be if that judgment were reversed by the Court of Appeal. This very clearly appears from Explanation 4, section 13 of the Code of Civil Procedure, Act X of 1877"-Melvill, J., in Nilvaru vs. Nilvaru, I. L. R., 6 Bom., 110; where the first suit, A vs. B, for damages for cutting down trees, was dismissed on the grounds (1) the land did not belong to A, and (2) B did not cut down the trees. A appealed, but his appeal was dismissed on the ground that he had failed to prove that B had cut down the trees. Held that a subsequent suit A vs. B, for possession of the land on which the trees had stood was not barred as res judicata, and see Balkishan vs. Kishan Lal, I. L. R., 11 Alla., 148. For similar decisions, see Gungahbishen vs. Roghonath, I. L. R., 7 Cal., 381; Emamoodeen vs. Futteh Ali, 3 C. L. R., 447; Chunder Coomar vs. Shibo Sundari, 11 C. L. R., 22