The principle of res judicata under Section 11 of the Code of Civil Procedure applies, making a previous decision final and conclusive on the same issue between the same parties, regardless of its correctness in law or the cause of action.

Madhavan Nair, J.

1. The Plaintiff is the appellant. This appeal arises out of a suit instituted by the Plaintiff, the Maharaja of Jeypore, in the Court of the Agency Additional District Judge of Waltair for kattubadi for the years ending 30th June, 1918, 30th June, 1919 and 30th June, 1920. The suit is directed against the mokasadars of the Pachipenta Estate and the usufructuary mortgagees from the mokasadars of a portion of the suit mokasa. These usufructuary mortgagees are defendants 12 to 21. These defendants contended that as being mortgagees from the mokasadars there was no privity of contract between them and the Plaintiff and that therefore they were not liable for rent payable by the mortgagors. Plaintiff pleaded that these defendants are estopped by the decrees in O.S. No. 18 of 1913 on the file of the Special Assistant Agent, Koraput and in A.S. No. 3 of 1916 on the file of the Agent to the Governor, Vizagapatam, from questioning the Plaintiffs right to obtain kattubadi from them (Issue 5). The other contentions raised by the parties were not pressed before us. The learned Additional District Judge held that the decisions referred to did not debar the defendants from raising the contention that they are not liable to pay the kattubadi claimed, and he also held that they were not in law liable for the same.

2. In O.S. No. 18 of 1913 the Maharaja of Jeypore claimed arrears of kattubadi for certain previous faslis. The main issue fought was the right of the Maharaja to kattubadi. There was no specific issue regarding the liability of the mortgagees to pay the kattubadi. The Assistant Agent decided against the Maharaja. On appeal after remand, in A.S. No. 3 of 1916 the Agent decided in favour of the Maharaja and gave him a decree for the kattubadi claimed. Sutapalli Appanna, the predecessor of the respondents, was respondent No. 4 in that appeal. The learned Advocate-General on behalf of the appellants argues that these decisions constitute res judicata in the present case and the respondents are precluded from raising their plea of non-liability on the strength of these decisions. Having regard to Explanation IV of Section 11, Civil Procedure Code, which says:

Any matter which might and ought to have been made ground o defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit, the fact that the plea of their non-liability was not expressly raised by the respondents predecessor may be ignored in deciding the question of res judicata and the appeal has been rightly argued by Mr. Jagannadha Doss on behalf of the respondents as if the point was raised specifically and decided against their predecessor. His argument is that the decision in O.S. No. 18 of 1913 and in A.S. No. 3 of 1916 holding that the mortgagee is liable to pay the rent is an erroneous decision on a question of law and as such cannot operate as res judicata when the same question is raised between the same parties or their representatives in a subsequent suit. The question for us to decide is whether this argument can be upheld.

3. In support of his contention, the respondent relies on a decision of this Court in Mangalathammal v. Narayanaswami Aiyar I.L.R. (1907) 30 Mad. 461 : 17 M.L.J. 250. In that case it was held that "where a purchaser of property at a Court sale purchases it subject to a charge for maintenance, such purchaser cannot, under Section 69 of the Contract Act, recover from the owner in whose hands it was so liable, payments made by him (the purchaser) towards maintenance to prevent the sale of the property." It was objected that the question was res judicata in the plaintiffs, i.e., the purchasers favour, because in a previous suit she recovered from the defendants money which she had paid in satisfaction of the maintenance charge. There was no dispute that in giving the judgment for the plaintiff in the previous suit the Court had arrived at an erroneous conclusion on a