1. The only question involved in this appeal is, whether Mr. Justice Russell's decision in Suit No. 55 of 1910 brought in this Court is now res judicata between the parties. The learned Judge of the lower appellate Court has held that the decision is res judicata, and the plaintiffs-appellants contend that that view is erroneous.
2. The Suit of 1910 was brought by the present plaintiffs' brother, an outside creditor, against the then defendants as being members of a partnership firm in which a sum of Rs. 17,500 had been deposited. It is admitted that that suit and the present suit were between the same parties. In the earlier suit, the father of the plaintiff No. 1 was defendant No. 4. He admitted his liability to the then plaintiff. The plaintiff in that suit had contended that the present respondents were liable as members of the partnership firm which had received the deposit, and the then 4th defendant, now the plaintiff, admitted or contended that that was the case. In other words he made common cause with the then plaintiff in asserting that the present respondents were partners in the firm. The Court decided that the present respondents were not partners in the firm, and it is this decision which has been held by the lower appellate Court to act as res judicata in this suit.
3. As I have indicated, the parties between whom the decision is now claimed as res judicata were co-defendants in the earlier suit. In considering whether the determination operates as res judicata, I think the first consideration to be borne in mind is that the Court is slow to enforce the principle of res judicata as against co-defendants, and the limits of the operation of the principle in such cases seem to me to be narrowly laid down. The leading case on the subject in Bombay is Mr. Justice West's decision in the case of Ramchandra Narayan v. Narayan Mahadev I.L.R. (1886) Bom. 216 where the learned Judge observes: 'Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication... and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and 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. Without necessity the judgment will not be res judicata amongst the defendants.' That exposition followed upon what was said by Vice-Chancellor Wigram in Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627 where the Vice-Chancellor observed: 'If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.' These pronouncements seem to me to indicate the reluctance which the Courts ordinarily feel to extending the doctrine of res judicata to co-defendants. In the case before us I am of opinion that the doctrine is not properly applicable to the co-defendants. In the first place I do not think that there was any real conflict of interests between the defendant 4 and the other defendants in the Suit of 1910. It is quite true that the defendant 4 made a different case from the case made by the other defendants. But that, it seems to me, is not tantamount to a real conflict of interest. The only interest which each of the defendants in the Suit of 1910 had was in regard to the full liability of each one of them to the then plaintiff. Now the 4th defendant admitted his liability, and appearing in person, it seems that he put in no written statement. In any event his liability, which he admitted, was not affected by the question whether his co-defendants were or were not liable to the plaintiff. Next, though in this respect the case of the 4th defendant differed from that of the other defendants, I cannot doubt but that the real contest in that suit was, and remained, a contest between the plaintiff and the other defendants. It is the fact that it was necessary for the Court to decide the question whether the other defendants were or were not members of the partnership. But I cannot concede that it was necessary to come to this decision in order to adjust and determine the rights and liabilities of the co-defendants inter se. On the contrary, I think that that decision was required in order to determine the contest between the plaintiff and the defendants. Nor does it appear to me how it can properly be said that the decision did in fact determine the rights and liabilities of the defendants inter se; for those rights and liabilities were not put in controversy. The controversy was between the then plaintiffs and the present respondents and that remained the only real controversy notwithstanding that the present plaintiff then dissociated himself from his then co-defendants on a point which did not affect his liability in that suit Applying, therefore, the language which I have quoted from the judgment of Vice-Chancellor Wigram in Cottingham's case I would say that the relief given to the plaintiff in the Suit of 1910 did not require or involve a decision of any case between the co-defendants, and, therefore, the co-defendants are not to be bound as between each other by the Court's proceeding and decision which were necessary only to the decree which the plaintiff obtained.
4. On these grounds I am of opinion that the appeal should be allowed and the cause be remanded to the lower appellate Court to be heard and decided on the merits.
5. Costs to be costs in the appeal.
6. I concur. The plaintiff-appellant's brother sought in the former suit to make the plaintiff-appellant and the respondents-defendants liable for a deposit as members of a certain firm. The plaintiff-appellant admitted his liability but the defendants-respondents were successful in denying their membership of the firm. The plaintiff-appellant in the present suit has sought to make the defendants-respondents liable for accounts upon a dissolution of the firm, and the question which has arisen is whether the membership of the defendants-respondents in the firm is res judicata by reason of the former litigation. That question depends upon the consideration whether this matter was really in conflict between them and whether there was a real decision as to their rights in this respect in the former litigation. Those are the principles laid down in the leading case of Ramchandra Narayan v. Narayan Mahadev I.L.R. (1886) Bom. 216, 220.
7. Now it appears to me that in the former suit the appellant's brother and the respondents were the parties actually in conflict. The appellant and respondents had no real conflict inter se. Each would have been liable for the claim in full in those proceedings if a member of the firm. Each would have been liable to have been sued separately and each would have been liable even in case of a joint and several decree against all to pay in execution the whole amount due from the firm. The appellant's liability as a member of that firm did not, it seems to me, depend in any way on the respondents being members of that firm so far as his liability then under litigation.
8. Moreover, it appears to me that there was no real decision in that former suit as to the rights of the appellant and the respondents which comprise such matters as liability for contribution for moneys levied in execution or otherwise in connection with the former litigation and their respective shares in the profits and losses which might prove on account taken to have been the result of the working of the firm. There was no decision at all of such interests and there could not have been any such decision in those proceedings. There was no real decision as to the rights of the appellant and respondents in the present suit which is for dissolution and accounts of the firm.
9. The decision in the former litigation cannot, in my opinion, be held to be res judicata of the questions arising in the present proceedings. The decree, therefore, of the lower appellate Court must be set aside and the appeal remanded for decision on the merits.
10. Costs costs in the appeal.