BHUDEO PANDEY Vs. GUPTESHWAR MISSIR & OTHERS

JUDGEMENT

(1.) IT is advisable at the outset to set out the material facts which have led to the prosecution of this appeal. Janki Pandey and Foujdar Mahton had obtained a preliminary mortgage decree against which the judgment -debtor preferred appeal to the High Court. While the appeal was pending, Janki Pandey died and in his place plaintiff and defendant I wore substituted. After the appeal was dismissed, final decree was prepared in favour of plaintiff and defendant 1. The plaintiff brought this present suit for a declaration that he was the daughters' son of deceased Janki and being his sole heir was entitled to the entire money due on the mortgage decree. The plaintiff also asked for a temporary injunction res -training defendant 1 from withdrawing his share of the amount due on the mortgage decree. The main ground of defence was that plaintiff was not the grandson of Janki, that the suit was in any case barred by res judicata. The learned Munaif held that plaintiff was the sole heir of the deceased Janki, but he 'dismissed the suit on the ground that the rule of res judicata applied. In appeal the learned Subordinate Judge reversed the judgment of the Muneif holding that plaintiff was entitled to decree.

(2.) THE main question to be determined in this appeal it whether the claim of the plaintiff is barred by res judicata.

(3.) LEARNED advocate for the appellant stressed the argument that the rule of res judicata as between co -plaintiffs will be applicable. But the argument is invalid. On principle the rule of res judicata will not apply unless there is a conflict of interest among the co -plaintiffs, and a judgment defining the real rights and obligations of the co -plaintiffs inter se. Further the adjudication inter se between the co -plaintiffs should have been necessary to give appropriate relief to the defendants (Cf. Wigram V.C. in Cottingham v. Earl of Shrewsbury,, (1846) 15 L J. ch. 441: (3 Hare 627).)