The doctrine of res judicata applies as between co-Defendants in a previous suit on the conditions that there must be (1) a conflict of interest between the Defendants, (2) the necessity to decide that conflict in order to give the Plaintiff the appropriate relief, and (3) a decision to that question between the co-Defendants.

JUDGMENT :

S. Acharya, J. - The unsuccessful Defendant No. 1 has preferred this second appeal against the judgment and decree of the Subordinate Judge, Aska, reversing the judgment and decree passed in favour of Defendant No. 1 by the trial Court.

2. The Plaintiffs filed this suit for setting aside the Court sale ordered in E.P. No. 242/63, and for a declaration that The judgment debtors in S.C. No. 161/56 had no saleable interest in the property. The Defendant No. 1 previously filed a suit (being S.C. No. 161/56) against Panchu Padhan, the brother of the Plaintiffs 1 and 2. In E.P. No. 242/63 arising out of the decree obtained in S.C.C. No. 161/56, the Defendant No. 1, who was the Plaintiff in that suit, got the suit land, along with some other lands, attached and sold in the said proceeding, and he himself purchased the suit land. The present Plaintiffs before filing this suit filed a petition under Order 21, Rule 58, CPC but as that was rejected by the Court, they filed this suit with the above prayer on various averments, mainly directed to show that late Panchu Padhan, the judgement debtor in the former suit of 1956 and/or his legal representatives, did not have any interest in any portion of the suit land.

3. Defendant No. 2 is the widow of late Panchu, and Defendants 3 and 4 are their sons. Only Defendant No. 1, the Appellant in this second appeal contested the Plaintiffs? suit by alleging in his written statement that the Plaintiffs and their brothel Panchu had not divided their properties including the suit lands by metes and bounds in 1934, as alleged by them, and no separate allotment of any property was or could be made in favour of their parents in 1934 as their parents were not alive by then. All the facts alleged in the plaint are denied in the written statement, and it is asserted therein that late Panchu had one-fourth share in the suit land, and the sale of this one-fourth share in the aforesaid execution proceeding is valid and binding against the Plaintiffs and Defendants 2 to 4. On the above grounds the Defendant No. 1 prayed for dismissal of the suit.

4. The trial Court dismissed the Plaintiffs? suit by holding inter alia that the judgment debtors in the S.C.C. suit bad interest in the suit land and accordingly the sale in the Execution proceeding could not be set aside.

5. On Plaintiffs? appeal against the aforesaid decision, the appellate Court allowed the Plaintiffs? appeal and decreed their suit mainly on the ground that the defence taken by the Defendant No. 1 to the effect that there was no division of the family property, was barred by res judicata on account of the decision In Title Suit No. 250 of 1949.

In arriving at the said finding on res judicata the Court below took into consideration the fact that in Title Suit No. 250 of 1949 between one Somenath Patra, the mortgagee, as the Plaintiff and the four brothers of the Plaintiffs and the widow of the fifth brother, the mortgagors, as the Defendants, it was decided that there was a completed partition between the Defendants in that suit.

6. It is when settled that the doctrine of res judicata applies as between co-Defendants in a previous suit on the conditions that there must be (1) a conflict of interest between the Defendants. (2) the necessity to decide that conflict in order to give the Plaintiff the appropriate relief and (3) a decision to that question between the co-Defendants. The above doctrine would apply even though the party against whom it is sought to be enforced did not in the previous suit think fit to enter an appearance and contest the question. But if such a party is to be bound by a previous judgment it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided-Chandulal Agarwalla v. Khalilur Rahamon AIR 1950 P.C. 17.

7. The Court below, on a consideration of the facts, borne out on the evidence on record, in the perspective of the above well settled la