George Knox, J.
1. The plaintiffs in the Court of first instance are now the respondents in this Court. They brought a suit in a Revenue Court for the recovery of Rs. 537-1-9 taking that as being the amount of profits of the plaintiffs' share in Mauza Sedhuna, taraf Raghu Ram, mahal Padarath Singh. The profits claimed were for the years 1316 to 1318 Fasli. The defendant, now appellant, in his written statement set out as the first plea that the claim was barred by Section 11 of the Code of Civil Procedure. In support of the plea of res judicata he has filed a decision dated December 12th, 1910, and he says that, as the claim of the plaintiffs was not proved in that suit it must be held that in the present suit also their claim for profits was heard and tried out, found wanting and dismissed on the merits. The lower Appellate Court considered this point which was also raised before it, and regarding the previous case it writes as follows : 'The burden of proof with respect to both these issues lay on the defendant to judge by the wording, of those issues. The defendant did not produce any proof and those issues remained undecided. The suit was dismissed because the plaintiffs absented themselves and failed to prove the amount of profits due to them for the years in suit. The only fact, therefore, which Was decided by the Revenue Court in that suit was that no profits were due to the plaintiffs for the years in suit (1314, 1315 and 1316 Fasli). The judgment cannot be taken to be an adjudication on the question of the proprietary title of the plaintiffs.' It, therefore, held that the suit under appeal before it was not barred and the matter was not res judicata. The Lower Appellate Court dismissed the appeal and the defendant now comes here in second appeal. He again raises the plea that the present suit is barred by reason of the previous decision. Before a Court can hold that a suit or issue is res judicata it must be satisfied that that issue had been directly and substantially in issue in the former suit between the same parties and that the issue had been heard and finally decided by the Court in the judgment which is put forward as a bar. The judgment is on the record and the operative part of it runs as follows : 'The case is dismissed for default. Let it be consigned to the records.'
2. It is apparent from the wording in which the judgment is couched that the matter in issue was not heard and finally decided by that Court. It is contended before me that it ought to have been heard and finally decided and as the case was a case which was decided under Order XVII, Rule 3, of the present Code of Civil Procedure, the Court had no alternative but to decide the suit and that its pronouncement must be taken as a decision upon the merits so far as the title of the plaintiffs in the present case is concerned. In support of this contention my attention was drawn to the case of Badam v. Nathu Singh 25 A. 194 : A.W.N. (1902), 6. and also to the cases of Sitara Begum v. Tulshi Singh 23 A. 462 : A.W.N. (1901), 149. and Venkatachalam v. Mahalakshmamma 10 M. 272. This last case was a case in which Section 158 of Act VIII of 1859 governed the procedure of the Court and that section directed that in cases similar to the present the Court shall proceed to a decision of the suit on the record notwithstanding such default. The law has now been altered and the words used in Order XVII, Rule 3, are that the Court may notwithstanding such default proceed to decide the suit forthwith.
3. The cases cited from this Court are of little help, seeing that in both of them the case was remanded for the decision of the ease under Section 158 of the Code. In the present case we have no remand order. We have only the decision as it stands. That decision in no uncertain words proclaims that it is not a decision on the merits. The plea taken fails. There were other pleas set out in the memorandum of appeal, but they were not pressed. The appeal is dismissed with costs.