Richard Garth, C.J.
1. The facts of this case are as follows:
One Ram Chand Saha, a trader in Rungpore, died some years ago, leaving a widow (the defendant No. 1), and two minor sons, Chunilal (the defendant No. 2) and one Ananda, who died during his minority.
2. Ram Chand in his lifetime carried on a. family business, which was admittedly continued for a time after his death by a gomasta; but on Chunilal's attaining his majority, he took the management into his own hands, and carried on that, or a different business, or both. The nature of the business which he did carry on is one of the questions of fact raised in the case.
3. On the 25th of Srabun 1285, Chunilal executed a karbamama in the plaintiff's favour, mortgaging, certain property as security for a loan account, which was opened for the purposes of his business. The plaintiff having sued upon this account, obtained a decree against the mortgaged property, but on proceeding to a sale, he was met by an objection on the part of the defendant No. 1, who claimed a half share in the property, as the heir of her deceased minor son, Ananda. Her claim having been allowed in the execution proceedings, the plaintiff brought the present suit for the purpose of enforcing his decree against the widow's share in the mortgaged property. The lower Court has dismissed the suit on a preliminary ground, holding that it is barred by Sections 13 and 43 of the Code of Civil Procedure. The Subordinate Judge considers that the suit is barred by Section 13, because it is based on the same cause of action as the former suit against Chunilal; and by Section 43, because the plaintiff might have included in the former suit the claim which he makes in this suit.
4. We think that this view of the Subordinate Judge proceeds upon a misunderstanding of the law. As regards Section 13, the case may be disposed of in a few words. In order that a subsequent suit may be barred under that section, it is necessary not only that the parties should be the same, but that the subject-matter of the suit should have been directly and substantially in issue in the former suit. Now, the defendant No. 1 in the present case, was no party to the former suit; and the question of her personal liability, or of the liability of her share in the mortgaged property to answer for the debt of the defendant No. 2, was not in issue in the former suit. The former judgment, therefore, is not a bar to this suit under the provisions of Section 13.
5. Nor is the suit open to objection under Section 43; because that section has reference to the subject-matter of the claim, and not to the persons against whom it may be made. It is true, that if the only object of the suit had been to charge the defendant No. 1 with the same liability as was charged upon the defendant No. 2 by the former decree, it would have been open to the objection upon which the case of Kendall v. Hamilton L.R. 4 App. Cas. 504 and the other cases which were cited during the argument were decided.
6. But it was by no means the only object of the suit to fix the defendant No. 1 with that liability. That undoubtedly is the subject of the first prayer in the plaint. But the second prayer is that the order of the 3rd of May 1881 (in the execution proceedings) may be set aside, and that the whole of the mortgaged property may be declared liable to be sold in execution of the former decree obtained against the defendant No. 2. This claim (except so far as it seeks to set aside the order of the 3rd of May), is a perfectly legitimate one, and is not open to the objection, which is fatal to the first claim.
7. The Subordinate Judge seems hardly to have realised the nature of this second prayer, and none of the issues which have been framed (except the first which is in a general form) are calculated to raise the question involved in that prayer.
8. Of course, if in point of fact the defendant No. 1 is right in her contention, that she had nothing to do with the business carried on by the defendant No. 2, and that the defendant No. 2 had no authority, express or implied, to mortgage her share of the property, the suit of the plaintiff must be dismissed upon the merits.
9. But if, on the other hand, the defendant No. 1 was a partner in the business carried on by the defendant No. 2, or if not being a partner, she consented, expressly or impliedly, to the mortgage being made, or even, if she knowingly stood by and allowed the defendant No. 2 to pledge the whole property to the plaintiff without objection, the claim made by the plaintiff in the second prayer of his plaint might prove to be well-founded. Whether it is so or not, appears to be a question of fact, which the Subordinate Judge will have to decide, when the case goes back for trial upon the merits.
10. But, as a matter of law, there seems no objection to the claim thus made by the plaintiff. It is one of a totally different nature from that which is made in the first prayer; and it is in fact the only means open to the plaintiff of correcting the error, if it is one, which has been made in the execution proceedings.
11. It is clear, that if two out of three partners are sued for a debt due from the partnership, and a decree is obtained against those two, and execution issues against the partnership property, if the third partner should apply successfully in the execution proceedings to have his share in the property released, the plaintiff's only remedy would be a regular suit, not for the purpose of making the third partner personally liable for the debt, but for the purpose of making the share of the third partner available to satisfy the decree.
12. The case will be remanded to be tried upon its merits; and the lower Court will frame, if necessary, an additional issue or issues. The appellant will have the costs of this appeal.