1. This is an appeal against the appellate order of the Second Additional Subordinate Judge of Jaunpur, confirming the order of the trial Court, which had dismissed the plaintiff-appellant's suit. The facts are given sufficiently fully in the order of the lower appellate Court. The question that has been argued in second appeal is contained in the 3rd issue set forth in that judgment, namely, whether the decision of the previous suit operates as a bar against the plaintiff so far as defendants 2, 3 and 4 are concerned, When the Subordinate Judge came to deal with this question however what he considered was whether the decision of the previous suit had the effect of barring the plaintiff's suit against all the defendants.
2. In the suit brought by the present appellant in 1927, for possession of this property against trespassers, the defendants were the same as in the present proceedings, with this exception, that defendant 4 in the former suit Sardar Singh, has died and is now represented by the present defendants 2 to 4, who are the respondents in the present appeal. The former suit was dismissed as against all the defendants, and the present appellant filed an appeal, but during these proceedings Sardar Singh died and the appeal was allowed to abate against his representatives. The appellant therefore filed an application to be allowed to withdraw the suit under Order 23, Rule 1, Civil P.C., and this permission was given with the result that the present suit was brought. The short question which I have to decide in appeal therefore is the effect of the proceedings in 1927 on the present suit. The lower appellate Court has found that the representatives of Sardar Singh could not be affected by the order passed by the Court under Order 23, Rule 1 because they were no parties to that proceedings, and the result was that the decree given in 1927, against the appellant and in favour of Sardar Singh had the effect of res judicata. Having decided this point, the lower appellate Court then went on to consider the effect of this decision on the other defendants, and found that as they had all been sued as trespassers on the property to which the plaintiff-appellant laid claim as mortgagee, it would be impossible to give a decree against the defendants other than defendants 2 to 4 because such a decree would not be consistent with the decree which it was necessary to give in favour of defendants 2 to 4 allowing them to remain in possession. It therefore agreed with the trial Court in dismissing the plaintiff's suit.
3. Mr. Pande, for the appellants, has argued that the legal effect of the Court's order allowing the former suit to be withdrawn is that that suit must be deemed not to have been instituted. In other words, the whole of the decree has been vacated, and it cannot have any force as res judicata in favour of defendants 2 to 4. When met with the argument that the order of the Court under Order 23, Rule 1 could not be held to be binding on defendants 2 to 4 who were no parties to the proceeding, he referred to a decision of the Madras High Court in Peria Perumal Muthirian v. Pichan (1911) 21 M.L.J. 574, in which a somewhat similar question was considered, and it was held that as the parties were not represented in the proceedings under Order 23, Rule 1 and had not taken any steps to have that order set aside in revision or review, they could not now object to sue on the ground, that the order granting leave was inoperative. There is however a clear distinction between the circumstances in the present case and those in the one before the Madras High Court. In the present case the contesting respondents had acquired a valuable right by the decision of the suit in their favour in the trial Court, whereas in the case before the Madras High Court the parties concerned had not acquired any right at all. I cannot therefore accept this authority for deciding that where an order has been, passed under Order 23, Rule 1 affecting the valuable right acquired by persons who have not been made parties to that proceeding, the order is binding on those persons and has the effect of depriving them of that valuable right.
4. The next argument for the appellant was that even supposing the right of defendants 2 to 4 acquired in the previous litigation could not be affected, the plaintiff should nevertheless have been allowed a decree against the rest of the defendants: who were undoubtedly bound by the order under Order 23, and who were shown on the findings of fact to be trespassers on property to which the plaintiff had proved his title. Mr. Pande has not been able however to satisfy me that the decision of the lower appellate Court is wrong. A decree given in the plaintiff-appellant's favour could not possibly have the effect of giving him possession as against defendants 2 to 4, and a decree giving him possession against the rest of defendants alone could not possibly be executed. None of the defendants has any right to trespass over any share of the property. The plaintiff-appellant must either have the whole of it or none of it, and I therefore agree that a decree given against the defendants other than defendants 2 to 4 would necessarily be inconsistent with the decree which the Court is bound to give in favour of defendants 2 to 4. The result is therefore that the appeal fails and is dismissed with costs.
5. Leave to appeal under the Letters Patent is given.