Das Gupta, J.
1. The only question in this case is whether the suit instituted by the opposite party Jatindra Nath Kar in the Court of the 2nd Subordinate Judge, 24 Parganas, on 6-1-1954, in which he had asked for re-opening of a preliminary and final decree passed in Title Suit No. 22 of 1941 of the same court and lor the passing of a new decree and consequential reliefs, is barred by the principle of res judicata. The previous title suit was instituted by opposite parties Nos. 2 and 3 against the present plaintiff Jatindra Nath Kar, his wife Prativamoyee Kar and certain other persons. Prativamoyee appeared in that suit and filed a written statement. In the plaint in that suit a definite averment was made that the loan in respect of which the mortgage was taken was a commercial loan. In her written statement, Prativamoyee pleaded that the loan was not a commercial loan, that she was entitled to the benefits of the Bengal Money Lenders Act and that instalments should be granted. Jatindra Nath Kar, though served with notice of the suit, did not appear and did not file any written statement. At the final hearing of the suit, Prativamoyee also did not appear and an ex parte order was made in the following terms.
Claim proved. Ordered that the suit be decreed in preliminary form with costs and interests at 8 p. c. p. a. simple. Decretal amount shall be payable within one month from this date. In default, the mortgaged property will be sold for the satisfaction of the decretal amount.'
2. The property was put to sale and purchased by the decree-holders. The present petitioner has become entitled to the property by his purchase from persons who had purchased it from the decree-holders. In the present suit, he has raised the plea that the suit is barred by the principle of res judicata. An issue was first framed whether the suit was maintainable and thereafter certain additional issues were framed and raised among others the question whether the suit was barred by tne principle of res judicata. Later on, these additional issues were treated as part of issue No. 1, wnether the suit was maintainable. The learned Subordinate Judge on the authority of this Court's decision in 'Sailabala Dassi v. Harish Chandra De', 46 Cal. W. N. 875 (A), rejected the first contention raised on behalf of the petitioner, namely, that the previous title suit having been brought & disposed of after the Bengal Money Lenders Act came into operation, any relief under the Bengal Money Lenders Act could no longer be granted. He further held that as it had been found in a previous litigation between the parties that Prativamoyee was the be-namidar of Jatindra Nath Kar, 'Prativa Kar having had no interest in the property at all was not a necessary party' and 'hence, it cannot be argued that the present suit would be barred by the law of res judicata as the plaintiff's wife had appeared and filed written statement in the mortgage suit an denied the defendants' allegation that the loans were commercial loans,'
He also rejected the contention that in any case the ex parte decision in the previous suit would operate as res judicata against Jatindra Nath Kar who was a party thereto though he had chosen not to appear. On the conclusions, he held that there was no bar in law to the maintainability of the suit.
3. The objection that no relief under the Bengal Money Lenders Act could be granted in view of the fact that the decree in the previous suit, which had been brought and disposed of after theBengal Money Lenders Act came into force, did not grant any such relief, was not pursued before us.
4. Mr. Mukherji, however, strongly pressed for bur consideration the other objection that the present suit is barred by the principle of res judicata in view of the fact, first, that Prativamoyee Jatin-dranath's benamidar had raised unsuccessfully the contention that the loan was not a commercial loan and had unsuccessfully prayed for relief under the Bengal Money Lenders Act and secondly that in any case Jatindra Nath was himself a party to the previous suit and so even though the decision was ex parte, the decision therein would bind him.
5. There can be no doubt that the learned Subordinate Judge has entirely misdirected himself in thinking that a decision against a benamidar does not operate as res judicata against the real owner. It would be a strange position, calculated to promote injustice in every way, if the law were that the real owner could stay behind and bring a suit and get relief through a benamidar, but if there was a decision against the benamidar, that could not bind him. If there could have been any dispute on this question, that has been set at rest by the decision of the Privy Council in 'Gur Narayan v. Sheolal Singh', 46 Cal 566 : (AIR 1918 PC 140) (B). Stating the law on the question in unmistakable terms, the judicial Committee observed :
'The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action : but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him.'
The learned Subordinate Judge was entirely wrong in thinking that as Prativamoyee had no interest in the property at all, the decision made in the previous suit against her was not res judicata.
6. Clearly, the position in law is that if the decision would have been res judicata against Prativamoyee had she been the real owner, the decision would equally be res judicata against the real owner when it is found that Prativamoyee was the benamidar. The question whether the previous decision would operate as res judicata or not depends ultimately on the question whether any issue was directly and substantially in issue in the former suit and whether that has been finally decided by the court in the previous suit. There can be no doubt that the question whether the special benefits of the Bengal Money Lenders Act were available to the borrower was directly and substantially in issue in the former suit. As already indicated, the plaintiffs had themselves made a definite averment that the loan was a commercial loan. The only purpose of this was obviously to exclude the defendants from the benefit of the Bengal Money Lenders Act. Prativamoyee in her written statement denied the truth of this averment and in paragraph 6 of the written statement pleaded that the interest claimed by the plaintiffs was illegal and irrecoverable being against the provisions of the Bengal Money Lenders Act, 1940. We find that six issues were framed. Issue No. 3 being in the words: 'Is the loan in suit a commercial loan?' Though there was no express Issue as regards the benefits of the Bengal Money Lenders Act being available to the defendants, there can be no doubt that this issue No. 3 taken with the subsequent issue: 'Is the interest claimed in suit excessive and illegal?' and issue No. 6: 'To what reliefs, if any, are the plaintiffs entitled?', raised fairly and squarely the question whether thebenefits of the Bengal Money Lenders Act wereavailable to the borrower.
7. The next question is whether this matter was heard and finally decided. There is in this case no express decision, stating in so many words, that the loan was a commercial loan or that the defendants were not entitled to the benefits of the Bengal Money Lenders Act it has been contended on behalf of the opposite party Jatindra Nath that in the absence of such an express decision, the decision in the previous suit cannot operate as res judicata. Reliance has been placed for this argument on an observation by Bijan Kumar Mukherjea J. in an unreported decision: 'Sk. Md. Abel alias Abed v. Altaf Hossain', Civil Rev. Case No. 309 of 1943 (C), in these words :
'The records of this case show that the Courtdelivered a very brief and summary judgment, andit contains no indication that the learned Judge addressed himself to any questions arising under theBengal Money Lenders Act and purported to exercise his powers under Section 36 of the Act.'
It has to be borne in mind that there is a long lineof decisions without a single dissentient case holding that a decision by necessary implication is asmuch res judicata as an express decision. Thatthis is so in the case where Explanation IV of Section 11of the Civil Procedure Code has to be considered,there can be no doubt, but even in other cases wherea matter has been raised in the pleadings but thereis no express decision but there is a decision bynecessary implication, the Court have alwaysheld that the principle of res judicata isapplicable. One of the earliest cases thatmay be mentioned in this connection is the caseof 'Soorjomonee Dayee v. Suddanund Mohapatter',12 Beng L R 304 (D), where the Judicial Committeeof the Privy Council after pointing out that the2nd clause of Act VIII of the Code of Procedure of 1859 would by no means prevent the operation of the general law relating to res judicata, went onto say:
'This law has been laid down by a series of cases in this country with which the profession is familiar. It has probably never been better laid down than in a case which was referred to -- 'Gregory v. Moles worth', 3 Atk. 626 (E) -- in which Lord Hardwicke held that where a question was necessarily decided in effect though not in express terms, between parties to the suit, they could not raise the same question as between themselves in any other suit in any other form:'
This view of the law has been so consistently followed that I find it impossible to believe that in the observation made above, Mukherjea J. wanted, in any way, to express his dissension from this well-settled rule. It may be mentioned in this connection that in the facts of that particular case the question whether the decree of the Small Cause Court Judge to which the observations of Mukher-jea J. were directed was res judicata or not was not really material. What had happened in that case was that a lender had brought a suit in the Court of small Causes at Sealdah for recovery of a loan of Rs. 273/-. The defendant did not appear to contest the suit and an ex parte decree was passed on 27-1-1941. A few days thereafter, the borrower filed an application for re-opening the decree by way of review under Section 36(6)(a)(ii) of the Bengal Money Lenders Act. This application was allowed and the ex parte decree was reopened and a new decree Was made. Against that the lender moved the High Court in revision. Henderson J. made the Rule absolute, reversed the order made by the Small Cause Court Judge, being of opinion that as the suit was instituted after the passing of the Bengal Money Lenders Act, the defendant petitioner might andought to have claimed relief under the Act in the suit itself, and this not being done the decision operated as res judicata. Thereafter a suit was brought by the borrower under Section 36 of the Bengal Money Lenders Act for relief under that Act, The lender raised the question that the suit was not maintainable, being barred by the principle of res judicata by reason of the decision of this Court by Hender-son J. The learned Small Cause Court Judge held that the suit was not maintainable and this time the borrower moved this Court in revision, Mukher-jea and Pal JJ. were of opinion that the decision of Henderson J. operated as res judicata and consequently the suit was not maintainable. The question whether the decision of Henderson J. was right or not was thus immaterial, so that the ob-servation made by Mukherjea J. as regards the nature of the judgment of the Small Cause Court Judge was really unnecessary.
8. Apart from that, it has to be remembered that in order to decide whether a question has beendecided in a previous suit, it is necessary, for a proper understanding of the judgment, to take notice of the pleadings. We do not know what the pleadings were in the Small Cause Court suit which was being considered by Mukherjea J. In the present case, we know for certain that the plaintiffs raised the question of the Bengal Money Lenders Act not being applicable by averring that the loan was a commercial loan and Prativamoyee also rais-ed the same question by pleading that the averment that the loan was a commercial loan was not true and by asking for benefits under the Bengal Money Lenders Act.
9. Mr. Mitter wanted to convince us that in making the observation noticed above, Mukherjea J. had in mind the peculiar nature of the provisions of the Bengal Money Lenders Act and that though ordinarily a decision by implication would amount to a decision for the purpose of res judicata, the position is different when question under the Bengal Money Lenders Act are raised. I am unable to see any justification for the view that the provisions of the Bengal Money Lenders Act affect in any way the principle that what has been decided by necessary implication is also finally decided for the purpose of application of the rule of res judicata.
10. It may be mentioned that an argument was sought to be advanced by Mr. Mitter also on the opening words of Section 36, namely, 'Notwithstanding anything contained in any law for the time being in force'. It was sought to be argued that the principle of res' judicata was excluded. As was pointed out in the unrepprted decision mentioned above, the principle of res judicata will not bar the Court from reopening a decree and to this extent it might be said that the words, 'Notwithstanding anything contained in any law for the time being in force', keeps out the principle of res judicata from suits or proceedings under the Bengal Money Lenders Act, but apart from that the rules of res judicata are as much applicable with regard to suits or proceedings under the Bengal Money Lenders Act as in other matters and where a court has considered the question whether the Bengal Money Lenders Act is applicable or not and has decided one way or the other, that decision must be held to operate as res judicata.
11. I have, therefore, come to the conclusion on consideration of the order passed by the learned Subordinate Judge in the title suit of 1941 along with the pleadings therein, that there was by necessary implication a decision therein, that the loan was a commercial loan and that the provisions of the Bengal Money Lenders Act were not applicable thereto. It must, therefore, be held that thepresent suit by Jatindra Nath Kar for a decision in his favour of this very issue is barred by res judicata, as Prativamoyee was his benamidar.
12. In view of the above conclusion, it is not necessary for us to consider whether the previous decision would have operated as res judicata against Jatindra Nath Kar even if Prativamoyee had not been a party to the previous suit.
13. We must, therefore, hold that the learned Subordinate Judge is wrong in his conclusion that the suit is maintainable.
14. I would, therefore, make this Rule absolute, hold that the suit is not maintainable and order that the suit not being maintainable be dismissed with costs. The petitioner will get his costs here and below from opposite party No. 1.
15. I agree.