Res judicata does not bar a suit if the parties litigate under different titles or the causes of action are distinct. The requirement to include the whole claim in a suit applies only to claims arising from the same cause of action, not all possible claims against a party.

Judgement

APPEAL from a decree of the Judicial Commissioner (August 1, 1882) reversing a decree of the District Judge of Fyzabad (Oct. 27, 1881) and remanding the Respondents suit, which had been dismissed, for a decision on its merits; and from a decree of the Judicial Commissioner (Sept. 26, 1884) made after the remand affirming a decree of the District Judge (April 14, 1883) in favour of the Respondent.

In his plaint the Respondent alleged his title to the property in dispute and its settlement with Malik Tafazzul Husain, of whom the Defendant Hidayat Husain was brother and successor, that he, the Respondent, had in ignorance of facts preferred a claim for such settlement, which had been rejected.

He referred to the proceedings of 1868 and 1869 mentioned in the judgment of their Lordships as " execution proceedings under Circular No. 4, of 1867."

He alleged that he first learned from the proceedings in a later suit, that the property now in suit had been mortgaged by his father, with power to redeem the same, that according to the terms of an agreement of the 4 Ramzan 1270 (June 1, 1854), which he produced and filed, it was clear that the mortgage money had been satisfied, and he prayed for accounts and that he might be allowed to redeem, paying what was due.

On the 27th of October, 1881, the District Judge gave his decision dismissing the Respondents suit, holding that the findings of the Settlement Courts were a bar to this suit; he added—

" Plaintiff’s vakil has contended that the proceedings in which these findings are recorded was a miscellaneous proceeding under the hard case rules, Circular 4 of 1867, but I find they were proceedings taken on a remand for further inquiry, ordered on a successful application to the Financial Commissioner for review of his own order in regular appeal, and are as much regular proceed ings as any other part of the case. In the redemption case the Plaintiff says there was no regular hearing. It was, however, a regular suit, and although the Court did not consider it necessary to summon the Defendant, it disposed of the case quite regularly."

He accordingly dismissed the Respondents suit.

On the 1st of August, 1882, the Judicial Commissioner of Oudh set aside the judgment of the District Judge. The material part of his judgment is the following—

" I am of opinion that the suit is not barred as res judicata. In the original case the Plaintiff sued for under-proprietary right. He now sues as a mortgagor, he is not litigating under the same title that he was in the under-proprietary suit." He accordingly ordered that the case should " be brought again on to the file of the District Judge who will decide the suit on its merits."

The issues subsequently recorded raised the two questions, whether the suit was barred as res judicata, and whether the property had been mortgaged in 1854.

On the 14th of April, 1883, the District Judge pronounced his amended decree, whereby he decreed in favour of the Respondent, for redemption of the property by payment of Rs. 2001.

In his judgment the District Judge said as to the first point—

"Having read the various decisions which have been given between the parties, I should not hold this claim barred as res judicata? but I need not assign my reasons, because I am of opinion that this Court cannot admit the plea of ‘res judicata in the face of the ruling of the Judicial Commissioner in his order of remand of the 1st of August, 1882."

On the second point he said —

" It cannot be said now with any show of reason that the talukdar holds under any title other than that of a mortgagee, and it is clear that the talukdars connection commenced only in the middle of 1261 F." ( 1854).

On appeal the Judicial Commissioner said with reference to the issue of res judicata, after reviewing the previous litigation " This procedure was in my opinion altogether defective even on the materials then before the Courts, but it is obvious that the case then before those Courts was of