Chandra Reddi, J.
1. The question referred to the Bench is whether a judgment rendered in an earlier suit filed under Order 21, Rule 63 to which the claimant, the decree-holder, and judgment-debtors were impleaded as parties could operate as res judicata in a subsequent suit between the claimant and a representativein-interest of the judgment-debtor. The facts of the case are fully set out in the order of reference; but for an appreciation of the question involved in this case we may briefly state a few facts.
The suit property originally belonged to one Khasim. Subsequent to his death, his widow Yelli sold the same for a stated consideration of Rs. 100 to the plaintiff under Ex. P. 1 dated 28th May 1936. A creditor of Yelli filed O. S. No. 589 of 1936 and obtained a decree. Prior to judgment, the suit property was attached when the plaintiff intervened with a claim based on Ex. P. 1. This claim was allowed which led to the filing of a suit by the creditor, O. S. No. 480 of 1941 for vacating the claim order. To that suit were impleaded not only the claimant, i.e., the present plaintiff, but the judgment-debtor as well. In the suit, it was decided that the property continued to be that of Yelli despite Ex. P. 1 for the reason that Ex. P. 1 was a sham and nominal transaction and was liable to be attached.
Consequent upon this decision, Yelli sold the property to the defendant for a stated consideration of Rs. 300, a portion of which was for discharging the decree debt in O. S. No. 589 of 1936. Subsequently, i.e., on 22nd June 1945, the present plaintiff deposited the decree amount into court. But as already the decree was discharged, the amount deposited by the present plaintiff was not utilised and he was informed of the same. Consequently the plaintiff has filed this suit for a declaration of his title and for an injunction restraining the defendant from interfering with his possession.
2. The defendant filed a written statement contending inter alia that the finding that the property continued to be that of Yelli was res judicata, that Ex, P. 1 was a sham and nominal transaction and would not therefore bind him and hence his sale had a priority over that of the plaintiff.
3. The trial Court dismissed the suit accept-ing the defence. On appeal the Subordinate Judge of Guntur reversed the finding of the trial court and decreed the suit holding that the sale in favour of the plaintiff was a bona fide transaction. The Subordinate Judge negatived the contention urged on behalf of the defendant in support of the judgment that the decision in O. S. No. 480 of 1941 operated as res judicata. In support of its view that it did not operate as res judicata the lower appellate court relied on a ruling of a Full Bench of this court in -- 'Narasimhachariar v. Raghava Padayachi', AIR 1945 Mad 333: ILR (1946) Mad 79 . The defendant who is aggrieved by the judgment and decree of the lower appellate court has preferred this second appeal.
4. When the matter came on for hearing before Subba Rao J. after deciding that the finding of the lower appellate court that Ex. P. 1 was not a sham and nominal transaction but was a bona fide one was binding upon the second appellate court, he referred the matter to a Bench as he was of opinion that the question stated above was of considerable importance and in view of a ruling of Horwill J. in --'Angathevan v. Natarajan Chettiar : (1947)2MLJ189 . The learned Judge was inclined to disagree with Horwill J. and take the view that the decision in the earlier suit would operate as res judicata in the present suit. However he referred the matter to a Bench as he thought that an authoritative ruling should be given on this question. Therefore the point for consideration in this second appeal is whether the present suit is affected by the doctrine of res judicata in view of the finding in O. S. No. 480 of 1941 that the transaction evidenced by Ex. P. 1 was 'not a genuine one.
5. The principle of res judicata as applicable to co-defendants is laid down by the Judicial Committee of the Privy Council tersely in -- 'Munni Bibi v. Trilokinath', 53 All. 103 .In that case the property, a house in Agra which formed the subject-matter of decision by the Judicial Committee, originally belonged to one Joti Prasad, his wife being one Mukhandi. They had two sons by name Bishamber Nath and Amar Nath and two daughters, Raian Dei arid Kashi. Prior to his death Joti gifted this property to his wife; but this was not accompanied by possession. In the partition between the two sons of Joti after his death, they treated the property in dispute as a partible asset ignoring the gift deed in favour of their mother and the property was allotted to the share of Amar Nath. The latter who was very much involved in debts subjected all his properties including the house in question to a mortgage and on the foot of that mortgage a decree was obtained.
There were various proceedings in respect of this property and it is not necessary to allude to all of them. Suffice it to say that by 1908, the property happened to be in the possession of a donee from one of the daughters of Mukhandi. the root of title being the gift deed in favour of Mukhandi. In or about the year 1908, an assignee of a decree against Amar Nath proceeded to attach the property as belonging to Amar Nath. The person in possession of the property objected to the attachment and the objection was allowed. Thereupon, the assignee decree-holder instituted a suit for setting aside the summary order and for a declaration of his right to proceed against the property in question in execution of his decree. To this suit were added as parties not only the heirs of Mukhandi but also the daughter of Amar Nath, Munni Bibi. both Amar Nath and his widow having been dead by that time. The claim of the decree-holder to proceed against the properties was upheld and the suit was decreed. But the property was not allowed to be sold in execution as one of the maternal grandsons of Mukhandi discharged the decree. Subsequently, Munni Bibi, the daughter of Amar Nath, instituted a suit for a declaration that that was the property of Amar Nath and for recovery thereof. One of the questions that arose for consideration was whether the decision in the earlier suit that the property was that of Amar Nath and that the heirs of Mukhandi had no title thereto operated as res judicata or not. Their Lordships decided that it operated as res judicata.
For judging, whether a decision was res judicata as between co-defendants or not their Lordships propounded three tests: (1) There must be a conflict of interest between the defendants concerned, (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims, and (3) the question between the defendants must have been finally decided. As their Lordships thought that that case satisfied all the three tests requisite' for the decision that it operated as res judicata, they held that the judgment in the earlier suit operated as res judicata. In coming to the conclusion that it operated as res judicaya their Lordships relied upon the dictum laid down by Wigram V. C. in -- 'Cottingham v. Earl of Shrewsbury', (1843) 67 E.R. 530 :
'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.'
In our opinion the present matter comes within the scope of the ruling in --- 'Munni Bibi v. Trilokinath', 53 All. 103 .
6. As in the lower appellate court, here Mr. Suryanarayana Rao, learned counsel for the respondent, relied on a decision of the Full Bench in -- 'Narasimhachariar v. Raghava Padayachi', ILR (1946) Mad. 79 . We shall now examine that ruling to see if it helps the respondents in any way. There, in a suit on a mortgage, a personal decree was given against the mortgagor and in execution of the personal decree some properties were attached as belonging to the mortgagor. The mortgagor's brothers filed a petition claiming the properties as their own. The claim was allowed; hut as the decree was otherwise satisfied, the decree-holder did not take any steps to vacate the summary order. Subsequently in execution of another mortgage decree obtained against the same judgment-debtor, the same properties happened to be attached as proper-lies belonging to him. His brothers again preferred a claim to these properties. The question arose whether the order in the claim proceedings that the property did not belong to the judgment-debtor operated as res judicata.
The Full Bench decided that the rule of res judicata had no application to that case for the reason that an order under Order 21, Rule 58 was conclusive only in respect of execution of a decree which has given rise to the proceedings. The learned Judges thought that the conclusive-ness attached only to the rights worked out in pursuance of attachment in execution of the decree and did not extend beyond the execution of the decree giving rise to those proceedings. In that view, they overruled the decision of a Bench of this court in -- 'Singariah Chetti v. Chinnabbi Reddy', 44 Mad. 268. Referring to -- 'Kumara Goundan v. Thevaraya Reddi', 48 M. L.J. 616 which doubted the correctness of -- 'Singariah Chetti v. Chinnabbi Reddy', 44 Mad. 268, the learned Chief Justice who delivered the judgment on behalf of the Full Bench observed as follows :
'The opinion expressed by Ramesam J. in --'Kumara Goundan v. Thevaraya Reddi', 48 M. L.J. 616 that the filing of a suit under Ordre 21, Rule 63 makes all the difference cannot be accepted without qualification. It is conclusive between the parties to the suit or their representatives so far as the execution of the particular decree is concerned; but, where the property is sold in execution proceedings arising out of an entirely different decree, the claimant' will not be precluded from setting up his title as against a stranger purchaser.'
7. It is these observations that have given rise to the contention that a decision given in a suit under Order 21, Rule 63 would not operate as res judicata in a subsequent suit based on an entirely different cause of action and which also formed the basis of the ruling in -- 'Angathevan v. Natarajan Chettiar', : (1947)2MLJ189 . In that case, a decree-holder attached certain property as belonging to the judgment-debtor. The property attached was claimed by a third party as belonging to him exclusively which resulted in the claim being allowed. Thereupon, the decree-holder seems to have instituted a suit for setting aside the summary order. In the suit a decision was given that the judgment-debtor had a share in the property, it being the property of the joint family and so liable to be sold in execution of the decree.
In a subsequent suit, the same question arose in execution of another decree. When the matter came up in second appeal to this Court, Horwill J. relying on -- 'Narasimhachariar v. Raghava Padayachi', I.L.R. (1946) Mad. 79 held that it did not operate as res judicata. The learned Judge expressed the opinion that that case was governed by -- 'Narasimhachariar v. Raghava Padayachi', though in -- 'Narasimhachariar v. Raghava Padayachi', there was no suit under Order 21, Rule 63 to vacate the summary order. He remarked : 'It is true that it was not necessary for the Full Bench in -- 'Narasimhachariar v. Raghava Padayachi', to consider whether the decision in a claim suit operated as res judicata in proceedings in execution of another decree; but the learned Judges clearly felt it necessary to decide that question in order to set at rest the conflicts and uncertainties arising out of previous decisions. The point was carefully considered and the learned Judges were of opinion that a claim suit, arising as it does out of claim proceedings, has relationship only to the particular decree that was being executed.' We do not think that the observations in --'Narasimhachariar v. Raghava Padayachi', lend themselves to the interpretation that in no case will the decision given in a suit under Order 21, Rule 63 with reference to title to property would operate as res judicata in a subsequent suit. That this is so is clear from the observations of the learned Judges at page 88 of the same report :
'Subject to the operation of the doctrine of res judicata in any particular case, we hold that an order on a claim petition filed under Order 21, Rule 38, or a decree in a suit filed under Rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings.'
It is clear from this statement of law that the learned Judges did not intend to ]ay down that in no case would the doctrine of res judicata apply to a decision given under Order 21, Rule 63. The earlier observations must be understood in the light of this later statement of law contained in the same judgment and we may take it that the former related to a case where the rule of res judicata would have no application, as for instance, in a suit instituted by the claimant or by the decree-holder, the judgment-debtor was not made a party and the fight was only between the claimant and the decree-holder. Viewed in that light, we think there is no conflict between the two statements of law contained in the same judgment. We should not assume that the learned Judges laid down a conflicting dicta.
8. In these circumstances in our judgmentthe decision in -- 'Narasimhachariar v. Raghava Padayachi', A.I.R. 1945 Mad. 333: I.L.R.(1946) Mad. 79 is not in any way conflicting with the ruling in -- 'Munni Bibi v.Trilokinath', 53 All. 103 and does notcarry the respondent very far. In our opinion,the judgment given in the earlier suit underOrder 21, Rule 63 would operate as res judicataas between co-defendants provided the threerequisite conditions for the applicability of therule of res judicata mentioned above are satisfied. In these circumstances, we answer thereference in the affirmative and direct the dismissal of the suit. This is a fit case in whichwe should direct each party to bear his owncosts throughout.