1. The foundation of the lower Courts' decision was plaintiff's pleading the judgment in Original Suit No. 170 of 1911,in which plaintiff and 1st defendant were 2nd and 1st defendants. Original Suit No. 170 was instituted after the present suit, though it was decided before it. It is argued first that in these circumstances the Court was debarred by Section 10, Civil Procedure Code, from trying Original Suit No. 170 until this, the earlier suit, had been disposed of, that the trial was consequently held without jurisdiction and that, therefore, defendants' cannot rely on plaintiff's pleading during it or on the decision which ended it.
2. We cannot accept this. Section 10 requires that the earlier suit shall be between the same parties as the later or, the portion of it at present relevant, between parties under whom they or any of them claim litigating under the same title. But in Original Suit No. 170 the plaintiff relied, not directly on a title derived from 1st defendant, but on the title of certain alleged vendees from him, whom he repudiated. The title under which the plaintiff in Original Suit No. 170 litigated was, therefore, not that now in question, and the section cannot be applied.
3. We have been shown no valid reason for holding that the decision in Original Suit No. 170 is not res judicata in the present suit or that the present plaintiff is not now estopped by his pleading there. We have been informed that the decision in Original Suit No. 170 is under appeal, but the fact is not admitted, and nothing to satisfy us regarding it has been produced. In these circumstances the second appeal fails and is dismissed with costs.