JUDGMENT

Ashworth, J. - This second appeal arises out of a suit brought by the plaintiff-respondent for recovery of a sum of Rs. 359, principal and interest on foot of a mortgage-deed, dated the 20th June, 1922. This mortgage-deed was a deed by which Musammat Rafiq-un-nissa, defendant No. 1 had mortgaged her mortgagee rights. The plaintiff, therefore, sues on what is known as a sub-mortgage. Musammat Rafiq-un-nissa had become mortgagee under a mortgage executed on 4th April, 1915, by one Abdul Razzaq. The plaintiff asks to recover his money by sale, if necessary, of the actual property and not merely by sale of the mortgagee rights. In his plaint he has indicated that he desires a decree in form No. 9 of Appendix (d), of the First Schedule of the Civil Procedure Code, that form being made a statutory form imposed by Order XLVIII, Rule 3, which provides that the form given in the appendices shall be used for the purposes therein mentioned. Both the lower Courts have decreed the suit. The objection was taken in those Courts that this suit was barred under the rule of res judicata by a previous suit. It appears that in a former suit the plaintiff sued for recovery of the money under his mortgage-deed by sale of the mortgaged property, and set up then that the mortgagee rights had been actually assigned to him under the deed of 20th June, 1922. Of course, if he was assignee of the mortgagee rights, he was exactly in the same position as if he was mortgagee and could do so. That suit was dismissed on a finding that the plaintiff was not an assignee of the mortgagee rights but only a sub-mortgagee. In the judgment of the Subordinate Judge in the previous suit dated the 20th of October 1926 the Subordinate Judge went on to consider whether the plaintiff could have got the relief he claimed by suing as a sub-mortgagee and not as an assignee of the mortgagee rights, and held that he could, if his suit had been so framed, and if the proper Court- fee had been paid.

2. Now, the lower Appellate Court care fully considered whether Section 11 of the CPC did bar the present suit. It held that it did not for two reasons. One reason was that the causes of action of the two suits were different. This reason appears to me to have no force. Nowhere in Section 11 is the term used "cause of action." The other reason given is that the plaintiff was not suing under the same title in each suit. It is clear from the judgment that the Subordinate Judge considered that the person suing as an assignee of a mortgagee right was a person litigating under a different title from a person suing as a sub-mortgagee. If he was right, then there was no bar.

3. The expression "title" has been constantly misinterpreted. That term, as used in Section 11 of the Civil Procedure Code, refers to the capacity or interest of a party, that is to say, whether he sues or is sued for himself, in his own interest, or for himself as representing the interest of another or as representing the interest of others along with himself. It has nothing to do with the particular cause of action on which he sues or is sued. The instance given in the well-known authority on res judicata by Bower, 128 of the 1924 edition, is that of a man suing on one occasion as an individual, in his personal interest, and on another occasion suing in a representative character where his interest is shared with that of other persons. It appears to me desirable to quote the whole passage:

A party who, though identical in name, litigates in different characters in the two proceedings, is, in contemplation of law, and in the correct sense of the civilians, two separate and distinct persons; so that a decision for, or against, a man who appears in a representative character, is not conclusive in favour of or (as the case may be) against, the same man appearing in subsequent proceedings as an individual, or in a different representative character. Conversely, two persons distinct in name, but substantially identical