Richard Garth, C.J.
1. In the year 1272, the plaintiffs brought a suit against their uncle, the defendant Shiba Nath Chatterjee, who had been the manager for many years of certain family property in which they were co-sharers. In that suit the plaintiff Kalidhun, who was of age, acted on behalf of himself and of his brother, the plaintiff Krishna Dhun, who was a minor. The object of the suit was to obtain from the defendant an account of the property from the year 1262 to 1277, Fasli; but from the form of the plaint it seemed doubtful whether the plaintiffs meant to sue for the account itself, or only for a declaration of their right to it. The stamp-fee on the plaint was Rs. 10, which would have been the proper stamp if the plaintiffs only sued for a declaration of right; but the defendant took the objection, that the stamp was insufficient, because the, plaintiffs had in their prayer apparently asked for an account.
2. An issue was raised upon this point; but the Subordinate Judge considered that the plaintiffs' claim was for a declaration of right only, and eventually made a decree to that effect; and this judgment was afterwards affirmed on appeal by the District Judge. Having obtained that decree, and the defendant having taken no steps to render an account, the plaintiffs, on the 30th of December 1879, brought their present suit 'for the amount of cash, Company's papers, and other debts that might be found due by the defendant to the plaintiffs on an adjustment of accounts.' In other words, the plaintiffs in this suit sued for the consequential relief, which they undoubtedly might have had in the first suit, if they had only insisted upon it.
3. The lower Court decided that the suit was barred by limitation, and the plaintiffs appealed to this Court from that decision.
4. The Division Bench, before whom the appeal was heard, considered that, as regards the plaintiff Kalidhun, the suit was barred; but as regards the other plaintiff, as he was still a minor at the time when the suit was brought, they held that limitation did not apply. They have, however, referred to a Full Bench another and more difficult question which has been raised by the defendant,--namely, whether the suit is barred by Section 7 of Act VIII of 1859, which was the Code of Procedure in force at the time when the former suit was brought
5. That section enacts, that 'every suit shall include the whole of the claim arising out of the cause of action; and that if a plaintiff relinquish or omit to sue for any portion of his claim, a suit for the portion so relinquished or omitted shall not afterwards be entertained.'
6. A provision to the same effect is contained in Section 43 of the present Code, and the substantial question referred to us is--Whether the fact of the plaintiffs having omitted to press for an account in the former suit, prevents them from suing for such an account in the present suit
7. If Section 7 stood alone, unqualified by any other provision in the law, it would, indeed, be very difficult to contend, that the present suit is not barred. It is obvious that the plaintiffs' real object in the first suit was to obtain an account from the defendant, and that the declaratory decree, with which they were then content, was only a means to effect that end. It would seem, therefore, impossible to say that, in suing for that decree, they sued for their whole claim in respect of their cause of action.
8. But then it is contended that Section 15 of the Code is intended to modify Section 7, and removes any difficulty which the plaintiffs, might otherwise have had in enforcing their present claim. That section is as follows: 'No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby; and it shall be lawful for the Civil Courts to make binding declarations of right without granting consequential relief.'
9. This provision is precisely similar to that of Section 50 of the English Statute 15 and 16 Vict., c. 86, which was passed 'for the improvement of the jurisdiction of the Courts of Equity;' and it has received an interpretation from the highest judicial authorities in England, which, as the plaintiffs contend, impliedly, if not expressly, justifies their present suit. It has been held by the Privy Council, in accordance with decisions of the English Courts of Equity, that a declaratory decree cannot be made under Section 15, unless the plaintiff is entitled to obtain some consequential relief. In the case of Sree Narayan Mitter, J. 11 B.L.R., 171, their Lordships, quoting with approbation the rule laid down by V.C. Wood in Rooke v. Lord Kensington 2 K. & J. 753 say: 'It has been held that, under the 15 and 16 Vict., Section 50, a declaratory decree cannot be made unless the plaintiff would be entitled to consequential relief if he asked for it:' and further on in p. 162 of the same judgment they say: 'It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for.' And again, 'it must be assumed that there may be cases in which a merely declaratory decree may be made, without granting any consequential relief in the particular suit; otherwise Section 15 of the Code of Civil Procedure would have no operation at all.'
10. And in the well-known Shiva Gunga case 11 Moore's I.A., 50, Sir James Colvile says: 'It appears, therefore, to their Lordships, that the construction which must be put upon the clause in question (Section 15) is, that a declaratory decree cannot be made, unless there be a right to consequential relief capable of being had in the same Court, or in certain cases in some other Court.'
11. Having regard to these rulings, the plaintiffs contend, apparently with good reason, that their case comes directly within the scope of Section 15. They might in their first suit to use the language of V.C. Wood in Rooke v. Lord Kensington 2 K. & J. 753 have obtained consequential relief if they had pressed for it, but the Court in its discretion thought fit to give them a declaratory decree only; and as the defendant has disregarded that decree, the plaintiffs have now brought a second suit to enforce their right.
12. It seems to me that this contention is well founded. I think that Section 15 is intended to modify the provisions of Section 7, and the present case is just one of those to which the section is intended to apply. This was evidently the view taken by the Allahabad High Court in Tulsi Ram v. Gunga Ram I.L.R. 1 All. 252 and I entirely agree with that decision.
13. It may be that, in the plaintiffs' first suit, the Court did not exercise its discretion wisely in acting upon Section 15, when it might have disposed of the plaintiffs' whole claim at once. There certainly seems no good reason why it should not have done so. But the Subordinate Judge having exercised his discretion in that suit, and given the plaintiffs a declaratory decree only, we are clearly not called upon, nor indeed competent in this suit, to say whether in so doing the Subordinate Judge was right or wrong. We have only to determine whether, having obtained in that suit a declaratory decree, the plaintiffs are barred in this suit from obtaining the account to which they have been declared entitled, and it seems to me that, according to the true meaning of the Privy Council rulings, they are so entitled.
14. It would indeed seem almost a mockery to empower a Civil Court to declare a plaintiff entitled to relief, and then, when the defendant refuses him that relief and disregards the Court's order, to tell the plaintiff that he is wholly without remedy, and that the Court has no power to assist him.
15. As Section 15 has now been virtually repealed by Section 42 of the Specific Relief Act and as no similar provision has been re-enacted in the new Civil Procedure Code, it is probable that the result of our present judgment will not be very material in the future.
16. I am of opinion that the answer to the question referred to us should be that the plaintiffs, under the circumstances, are not barred from bringing their present suit.
17. The plaintiffs should have their costs of this reference to the Full Bench.
18. No doubt a suit for a declaratory decree without consequential relief would lie, but 1 have much hesitation in holding that, as in the present case, a suit could be brought for the consequential relief for which the plaintiffs could have asked, but omitted to ask in their former suit. The law now in force, Section 42, Specific Belief Act (I of 1877), provides for such a contingency, and, therefore, I do not think it necessary to differ from the judgment of my learned colleagues.