Banerjee and Rampini, JJ.
1. The plaintiff brought this suit to establish his right to sell the property in dispute in satisfaction of a decree against one Ram Mohun Roy, which he had purchased; and he alleged in his plaint that upon the attachment by him of the said property in execution of that decree, a claim was preferred by the defendant, upon which the property was released in May 1889.
2. The defence was that the property did not belong to the judgment-debtor; that it belonged to the defendant; and that the plaintiff was not entitled to maintain the suit, as he had on a former occasion unsuccessfully instituted a similar suit against the defendant for obtaining a declaration that the property in question belonged to the judgment-debtor.
3. The Courts below have overruled the objections raised by the defendant and found that the property belonged to the judgment-debtor of the plaintiff; and they have accordingly decreed the suit.
4. On second appeal it is contended on behalf of the defendant--first, that the suit is barred by Sections 13 and 373 of the Code of Civil Procedure; and secondly, that the decision on the merits in favour of the plaintiffs is wrong in law, as the only evidence on which that decision is based is a recital in a document, which recital is inadmissible in evidence against the defendant.
5. The facts upon which the 'first contention is based are shortly these.
6. The plaintiff in execution of a decree held by him against the judgment-debtor Ram Mohun Roy, attached the property now in dispute. Thereupon a claim was preferred by the present defendant, and the property was released. The present plaintiff then brought a suit to establish his right to sell the property in execution of his decree, and that suit the plaintiff withdrew without leave to bring a fresh suit. It is thereupon contended, in the first place, that Section 13 of the Code bars the suit, and that as in the former suit the plaintiff sought to establish the right of his judgment-debtor Ram Mohun Roy, to this property, and as he did not obtain any decree in that suit, it must be held, under the third explanation to Section 13, that the relief that was claimed had been refused; and it is further contended that even if Section 13 is not applicable, the present suit is barred under Section 373 of the Code of Civil' Procedure, it being a suit for the same matter as that for which the former suit was brought. With regard to the first part of this contention it is enough to say that Explanation III evidently contemplates a decree being passed which does not expressly grant a certain relief, and it lays down that such relief must in that case be deemed to have been refused. In the present case the former suit did not result in any decree. That suit was not heard and determined, but was allowed to be withdrawn, though without leave to bring a fresh suit. That being so, Section 13 can have no application in this suit.
7. The only question then is, whether Section 373 of the Code is a bar to the present suit. That section provides that if the plaintiff withdraws from the suit without permission to bring a fresh suit, he shall be precluded from bringing a fresh suit for the same matter. Now, though the property in respect of which the present suit is brought is the same as that in respect of which the former suit was brought, still that would not be sufficient to make the present suit one for the same matter as that for which the former suit was brought, within the meaning of Section 373. The object of the former suit was to establish the plaintiff's right to bring to sale certain property which no doubt was the same as that in dispute now, and his cause of action was the release of that property from attachment upon a claim being preferred by the present defendant. The object of the present suit is to establish the present plaintiff's right to bring to sale the same property, but in execution of a different decree, and we may observe, a decree originally obtained by a third party, who has transferred it to the plaintiff; and the cause of action in the present suit is different, arising from an order passed on a different claim case. That being so, we think the present suit is not for the same matter as that for which the former suit was brought. It may be quite true that the main issue to be tried in the present suit is the same as that which was the main issue to the former suit, but that would not make the present suit one for the same matter as that for which the former suit was brought. If the former suit had been heard and determined, and if Section 13 was in consequence applicable to this suit, such an issue tried in the former suit might have operated as res judicata in the present suit; but that is not the case here.
8. Then as to the second contention, the evidence objected to as being inadmissible against the defendant-appellant is a recital in a kobala in favour of the defendant, under which he alleges he has acquired title to the property in dispute; and that recital is an admission by the defendant's vendor that the property in dispute had previously been conveyed by him to the plaintiff's judgment-debtor. That being so, we think it is clearly admissible in evidence against the defendant.
9. The objections urged before us therefore both fail, and this appeal must accordingly be dismissed with costs.