JUDGMENT

Dunkley, J - This is a second appeal against the judgment and decree of the Subdivisional Court of Kanbalu, dismissing the plaintiff-appellant's suit, which decision was upheld on first appeal to the District Court of Shwebo. The respondents have sought to support the decision of the Subdivisional Court on a ground which was decided against them by the Subdivisional Court, but which was not considered by the District Court, namely, that the present suit is barred as res judicata by reason of the decision in Suit No. 11 of 1930, of the Township Court of Kanbalu.

2. Ma E Shi, who acted as agent of the appellant in the original suit, is the appellant's daughter, and Maung Taik Gyi who is acting as agent of the appellant in this appeal, is his grandson. U San Ke, respondent 2, is the husband of Ma E Shi. U Tha Lu made a gift of certain land by registered deed to Maung Taik Gyi, and in Suit No. 11 of 1930, of the Township Court of Kanbalu Ma B She and U San Ke and other children of U Tha Lu sued to have this deed of gift declared void and were successful. The suit was not well framed, but the evidence made it clear that what Ma E She and U San Ke desired to obtain was a declaration that the deed of gift did not operate to pass any title in the land now in suit on the ground that U Tha Lu had no proprietary interest in the land which was the property of Ma B Shi. The question directly and substantially in issue in the suit was the ownership of this land, and the Township Court held -that this land was the property of Ma E Shi; and this decision was confirmed on appeal to the District Court.

3. Now the suit out of which the present appeal arises was a suit brought by U Tha Lu under the provisions of Order 21, Rule 63, Civil P.C. Respondent 1, Devanarain, held a decree against U San Ke respondent 2. In execution of that decree he attached this very land and brought it to sale and at the auction it was purchased by U San U, respondent 3. U Tha Lu, after having been unsuccessful in an application for removal of the attachment, brought this suit against the respondents, praying for a declaration that he was the absolute owner of the land in question and that respondent had no right, title or interest therein. In his preliminary judgment dated 22nd February 1932, the learned Subdivisional Judge held that the suit was not barred by reason of the previous decision because: (1) the matters directly and substantially in issue in the two suits were not the same, and (2) the parties to the two suits were not the same. It is now admitted on behalf of the appellant that the decision of the learned Sub-divisional Judge on the first point was wrong, and it is, in fact, plain that the main question in issue in both suits was whether U Tha Lu was the owner of the suit land or not. As regards the question of parties, under the provisions of Section 11, Civil P.C., in order that a suit may be barred as res judicata the suit must be between parties, who are the same as the parties to the previous suit or who claim under parties to the previous suit.

4. In the former suit U Tha Lu was a defendant and U San Ke was a plaintiff, and admittedly the principle of res judicata does apply, so far as they are concerned. It is further admitted that U San U, as the auction-purchaser, who purchased the right, title and interest in the land of U San Ke, is a person claiming under U San Ke: see Kali Dayal v. Umesh Prasad A.I.R. 1922 Pat. 63. Consequently it remains to consider whether in a suit under Order 21, Rule 63, Civil P.C., the decree-holder claims under his judgment-debtor. In my opinion it must be held that he does so, for he is litigating to assert the title of his judgment-debtor to the property, and he obtains his right to bring or defend the suit through his judgment-debtor: see Najimunnessa Bibi v. Nacharuddin Sardar . To hold otherwise would produce the absurd result that, although in previous litigation between the claimant and the judgment-debtor