1. This appeal arises out of a suit for accounts against an agent.
2. The defendant acted as the agent of the plaintiff and his brother (who is the pro forma defendant No. 2 in the present case) up to the year 1319, and from that year upto 1322, the defendant acted as the gomasta of the plaintiff alone.
3. It appears that in the year 1916 a suit was instituted by the pro forma defendant, the brother of the plaintiff, for accounts against the defendant. The present plaintiff was made a party to that suit as pro forma defendant No. 2. That suit was decreed on compromise as between the plaintiff and the principal defendant in that suit.
4. In the present suit the principal defendant pleaded that the compromise decree in the suit brought by the plaintiff's brother operated as res judicata. The lower Appellate Court has given effect to that contention,
5. We are of opinion that the decree cannot operate as res judicata on two grounds. The first is that there was no conflict of interest and no decision as between the defendants themselves, namely, the present plaintiff, who was the pro forma defendant in that suit, and the principal defendant, nor was any decision as between them necessary in order to give appropriate relief to the plaintiff in that suit. See Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627 at p. 638 : 67 E.R. 530, Magniram v. Mehdi Hossein Khan 31 C. 95 : 8 C.W.N. 30, Jadav Chandra Sarkar v. Kailash Chandra Singh 31 Ind. Cas. 929 : 21 C.W.N. 693 : 25 C.L.J. 322. The second ground is that there was no adjudication by the Court in that suit and the decree which was passed, was by consent. There is no doubt that a consent decree is just as binding on the parties as a contested decree, but it cannot have greater validity than the compromise itself [see Kandarpa Nag v. Banwari Lal Nag 60 Ind. Cas. 864 : 33 C.L.J. 244].
6. The learned Pleader for the respondent practically conceded that the ground upon which the lower Appellate Court proceeded in holding that the decision in the previous suit operated as res judicata could not be supported, but he contended that the decree can be supported on two other grounds. The first is that the claim up to the year 1319 was barred by limitation. It is said that as the defendant ceased to be the agent of the plaintiff's brother from 1319, the former agency did not continue and there was a fresh agency from that year so far as the plaintiff was concerned. It appears, however, that the defendant never ceased to be the agent of the plaintiff from the year 1311 to 1322, although for a portion of the said period he acted as the agent of the plaintiff's brother also. As the defendant's agency did not terminate more than three years before the suit, we are unable to hold that the claim is barred by limitation.
7. The next ground upon which the decree of the lower Appellate Court is sought to be supported is that the plaintiff is estopped by his conduct from claiming accounts to the present suit. It is contended that in the previous suit, which was brought by the plaintiff's brother, the present plaintiff, who was the pro forma defendant No. 2, appeared and that his Pleader, along with the Pleader for the plaintiff in that suit, took the account papers submitted by the defendant in that suit, and got them explained satisfactorily and having done all that, it was no longer open to the plaintiff to claim accounts again in this suit.
8. This question, however, was not gone into by the Courts below and the lower Appellate Court disposed of the case on the ground that the previous suit operated as res judicata,
9. Under the circumstances, we think the case should be sent bank to the lower Appellate Court in order that the question may be gone into and the case disposed of according to law. The findings on other questions of fast have not been challenged and they will stand.
10. Costs to abide the result.