1. The question for decision in this appeal is whether the District Judge is right in holding the suit to be barred as res judicata by the order F dated 25th October 1884.
2. This order F allowed a claim preferred by the present respondents to this same house on its being attached in execution of a decree obtained by one Naranappa (in O. S. No. 31 of 1884) against Subbien and Rungaswami Iyen the former of whom is this respondent's maternal grandfather and also father-in-law being the adoptive father of the latter (Rungaswami Iyen) who is respondent's husband. It appears that on respondent's claim to the house being allowed as above, the then plaintiff brought a suit under Section 283 of the Code of Civil Procedure (O. S. No. 331 of 1885) which was dismissed, see Exh. G.
3. The present appellant does not claim through the former plaintiff Naranappa. She obtained her decree in O. S. No. 325 of 1888 against c son Rungaswami Iyen (respondents husband) for a debt due on a bond executed by Subbien. On appellant's attaching the house in execution of this decree, respondent again put in a claim to the house under Section 278 which was dismissed and she thereupon brought the present suit under Section 283.
4. The District Munsif dismissed the suit; but on appeal by the present respondent, the District Judge, without going into the merits, set aside the District Munsif's decree and passed a decree in the respondent's favour on the simple ground that the defendant (now appellant) is estopped from setting up Subbien's right because it is res judicata by the order F.
5. He explains, 'It was then decided that Subbien had no claim to the property and the suit brought by the then claimant against that order was dismissed. Subbien himself did not contest the order, and it is now too late for him to do so more than a year having elapsed since it was made and that being the case, the defendant can have no right to attach the property as Subbien's while Subbien himself has lost his right to it,'
6. Even assuming that the fact of Subbien having had notice of his daughter-in-law's claim in 1884 is sufficient to make him a party against whom that order was passed and to debar him or his legal representatives from now denying the respondent's right to the house, I am unable to agree with the District Judge in holding that the appellant is equally bound by that order to which she was no party; and the mere fact of her being the creditor of Subbien is not sufficient to constitute her his legal representative. Her suit is therefore not affected by Section 283 of the Code of Civil Procedure or by the limitation of one year prescribed for such suits.
7. Without considering therefore whether Subbien or his son would or would not be barred by the order F from, disputing the respondent's right to the house in question I am clearly of opinion that the appellant is not barred by that order.
8. I would therefore, allow this appeal and setting aside the Lower Court's decree remand the case to the (Sic) Appellate Court for replacement on the file of appeals and disposal according to law.
9. I would further direct respondent to pay appellant's costs of this second appeal.
Muthusami Aiyar, J.
10. I am also of opinion that the claim is not res judicata either by reason of the order F or of the decree in suit No. 331 of 1885. To neither the present defendant Gnanambal was a party, and though the plaintiff was a party, that circumstance is not sufficient to create the identity of parties necessary to sustain the plea of res judicata as there is no mutuality, and as without mutuality there can be no estoppel. Assuming that both Subbien and his son were parties to the order F, and that neither could now sue to set it aside, the present defendant is not under the same disability. Though she attached it as the property of Subbien or his son, she did so not as their privy or representative but by virtue of a right inherent in her to attach what was really their property at the date of attachment. It would be open to her to show that Subbien and his son were in collusion with the plaintiff. There is nothing on the record to indicate that the notice of claim was served on Subbien's sou. However this may be, the defendant is not their representative. This circumstance distinguishes this case from the cases cited by the District Judge.
11. I therefore concur in the order proposed by my learned colleague.