Louis P. Russell, Acting C.J.
1. The plaintiff herein (Hari Vithal) applied for execution of a decree against the surety (Waman Hari) of the judgment-debtor (Anpurnabai) and the surety of the surety (one Balaji).
2. The following is a concise statement of the proceedings herein.
3. 6th September 1892. Decree for plaintiff in Suit No. 331 of 1890 in Subordinate Court of Islampur against Anpurnabai wife of Balaji Suryaji.
4. 26th October 1890. Plaintiff applied for execution, Dark-hast 517 of 1892 (Darkhast No. 1) and got possession of some property.
5. On appeal against the decree, (250 of 1892), further execution was stayed on Waman giving security. The appellate Court remanded the Suit and Darkhast No. I was struck off the file of the lower Court.
6. 10th October 1895. The appellate Court finally modified the decree.
7. Plaintiff then presented an application for execution, 46 of 1896 (D. II) against Anpurnabai and surety Waman. On the 29th January 1896 the Court dismissed his claim against Waman for Rs. 1,000 on the ground that he was not a defendant in the original suit.
8. 9th July 1897. The application was finally disposed of.
9. Then plaintiff applied for execution against Anpurnabai, also against another defendant who had been added on appeal and Waman, Darkhast 140 of 1898 (D. HI).
10. 20th August 1900. The Court inter alia allowed plaintiff's appeal against Waman.
11. 10th December 1901. Waman filed an appeal which was decided against him. It was on this occasion that Balaji stood surety for Waman.
12. 25th September 1901. D. III, 140 of 1898 was disposed of on account, of the plaintiffs default.
13. 9th December 1902. Present Darkhast IV presented by plaintiff against the two sureties. The First Court granted the plaintiff's claim. Waman appealed to the lower appellate Court which reversed the decree, holding that the decision of the Court in No. 46 of 1896 (D. II) operated as res judicate against plaintiff in the present application.
14. On the 19th June 1905 the High Court held that 'having regard to the order passed on the later Darkhast (D. III), the decree must be reversed and the case sent back for disposal on the merits.'
15. The case was accordingly sent back and the only issues then argued were Nos. 3 and 6, viz., limitation, and the issue as to whether the plaintiff being alleged to be Anpurnabai's heir had no right to proceed against the surety as the right under the decree had become merged. Both these issues were found against the plaintiff and he has not attempted to impugn the findings on them before us.
16. But on the 3rd day of March 1906 a Bench of this Court in Lakshman Sadashiv v.Gopal Appaji : (1906)8BOMLR367 held that where a surety has become liable for the performance of a decree passed prior to his entering into the obligation he cannot under Section 253 of the Civil Procedure Code be proceeded against in execution of the decree. And this is the sole point which has been argued before us.
17. The question which arises is-is it now open to Waman in this proceeding to re-open this question. If it is, the matter must be referred to a Pull Bench looking at the case of Venkapa Naik v. Baslingapa I L R (1887) 12 Bom. 411.
18. But we do not think it is open to Waman in this proceeding to re-open the question. For by his accepting the finding on this point and deliberately abandoning it before the lower appellate Court we do not see how he can now seek to reopen it in the way he seeks to do.
19. In our opinion his proper course after the decree of the High Court 8 B.L.R. 367 was to have applied for a review-see Waghela v. Shaik Masludin I L R (1888) 13 Bom. 330-relying upon that judgment as being new and important matter within Section 623. Whether it is open to him now to adopt this course is a point upon which we obviously give no opinion.
20. The result is that this appeal must be dismissed with all costs.
21. The question is whether the plaintiff can proceed against the surety Waman in execution or must file a separate suit against him? That question was raised and determined in Waman's favour on the second darkhast. No. appeal was preferred against that order. It is conceded that an order in execution is of the nature of a decree and if unappealed against or confirmed in appeal is a decree constituting a res judicata. On Darkhast No. 3, the same question was re-agitated but with a different result. This time the Courts held against Waman and in the plaintiffs favour. No further appeal was made. But as a matter of fact before the decree of a first appellate Court was pronounced, the darkhast had been struck off for the plaintiff's default. There was therefore no apparent reason why Waman should have taken the matter higher. Be that how it may, plaintiff put in darkhast No. 4. And the first Court held that the question between him and Waman was still open. The Court of first appeal on the contrary held that it was res judicata not by the abortive proceedings on the third, but by the effective and final proceedings on the second Darkhast. Plaintiff appealed to the High Court, where it was held that the Judge of first appeal was in error, and that by reason of the third Darkhast and what was done upon it, the plea of res judi. cata based on the result of the second Darkhast, upon which Waman still relied, failed. Their Lordships accordingly reversed the decree of the Court below and remanded the case for disposal on the merits. From what followed it is clear beyond all reasonable doubt that Waman understood this Court to have meant, not only that his own plea of res judicata had failed but that he was himself precluded by a like plea of the plaintiffs from re-agitating the question as to his liability to be pursued in execution. For when the remand came on, Waman did not again press his former contention, but limited himself to two points and two points only, one of limitation and one of a highly technical nature; both were decided against him, and in this appeal he has not disputed or attempted to dispute the correctness of those findings. But about the time that the lower appellate Court gave judgment, a Bench of this Court held that a surety after the decree of the first Court, although before the decree of the Court of final appeal, could not be pursued in execution. That finding appears to be in direct conflict with a former decision of this Court in Venkappa Naik v. Baslingappa I L R (1887) Bom. 411 which was in accordance with the views of the High Courts of Calcutta and Allahabad. Upon the strength of that Ruling the appellant presses us to hold that he is not liable in these execution proceedings. He further contends that upon a mere question of law there can be no res judicata. As to the first point were it necessary to deal with it we perceive no other course in the present state of the cases than to refer it to a Full Bench. But we are of opinion that upon a true construction of this Court's remand order, it purported to and did in fact affirm that the particular question which is now sought to be re-opened was res judicata by the proceedings upon the third Darkhast between these parties. And we have the best authority for holding that an erroneous decision upon a point of law may yet as between the parties to it, but of course no further, be a sufficient res judicata to preclude them from re-agitating it. We are not of course to be understood as suggesting that the decision of this Court was in any way erroneous: we merely say that even had it been, yet if it did bear the meaning and construction which we believe that it does, it would conclude the point which is now pressed upon us. For that reason we would dismiss this appeal with all costs.