1. It this case, the plaintiff and defendants agreed that the defendants would discharge a certain liability of the plaintiff to a third party. Out of this agreement three suits have arisen. The defendants refused to pay to the third party and the first suit was brought and a decree obtained against the plaintiff by that party. Then the plaintiff sued the defendants and the third party to compel the defendants to pay the third party the amount decreed against him. The defendants then objected that the suit was premature and that the plaintiff did not have any right to claim any compensation until he actually paid to the third party the sum agreed to be paid by the defendants. The Court accepted this contention and dismissed the suit.
2. The decree against the plaintiff by the third party was then executed and the plaintiff had to pay the amount and immediately thereafter the present, the third, suit was instituted. The first defendant now contends that the present suit is barred, as it ought to have been decreed on the previous occasion. This argument was accepted by the Subordinate Judge in the judgment sought to be revised and I have to pronounce upon its correctness.
3. It is supported on the ground (1) that a wrong decision in law does not bind the parties and (2) alternatively that as the defendants denied their liability in the previous suit, a new cause of action arose from that denial.
4. It seems to me that the defendants were barred by the operation of Section 11 of the Civil Procedure Code from raising the contentions on which they have succeeded, as in the previous suit the matter directly and substantially in issue between the same parties was, when did the cause of action arise between the parties, in respect of the contract alleged to have been entered into.' That was a complex question involving perhaps more issues than one, and it may be that some of the issues were issues of law. But exactly the same comprehensive question involving the same subsidiary issues was in contention between the parties on the present occasion, and it ought not to have been allowed to be re-agitated. The subsidiary issues which I have mentioned would have reference to the exact terms of the contract between the parties, including the terms implied by law and the legal effect of the terms.
5. These questions were res judicata. Musammat Bibee Efatoonnissa v. Khondkar Khoda Newaz 21 W.R. 374 and Narasimha Row v. Rama Row 5 M.L.J. 79.
6. In seems to me that the second contention, that a new cause of action arose on the denial by the defendants of their liability, is based on a fallacy. The contentions of parties in their pleadings do not give rise to new causes of action. Assuming that it were so, the plaintiff has not sued on that cause of action. But this argument appears to me too grotesque to require any detailed consideration and I refer to it only as it was insisted upon with great vehemence.
7. It seems to me that the conduct of the defendants has been most vexatious and I order them to pay the costs of the petition and the costs incurred before the Subordinate Judge by reason of the plea raised by them.
8. The decree of he Subordinate Judge is set aside. He will take the case on his file and dispose of it in accordance with law.