1959 Present : Sansoni, J., and H. N. G. Fernando, J.

M. KRISHNAR et., al., Appellants, and K. S. . THURAIRAJAH,
Respondent

S. C. 590 - D. C. Jaffna, 432/L

Res judicata-Scope of rule-Applicability as between co-defendants-Action under section 241 of civil Procedure code-Is judgment-creditor privy of the judgment-debtor ?

(i) A judgment-creditor instituted an action under section 247 of the Civil Procedure Code making the claimant and the judgment debtor co-defendants. A previous decree entered in favour of the claimant as against the judgment. debtor by virtue of an order of consent and without investigation of title was pleaded by the claimant as res judicata.

Held, that the rule of res judicata is applicable as between co-defendants provided only that three conditions are satisfied :-(1) There must be a conflict of interests between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; (3) the question between the defendants must have been finally decided.

(ii) Two lands A and B together formed one allotment. In action No.1 the plaintiffs sued the defendant for a declaration of title to land A. An order was made of consent that the plaintiffs' action be dismissed unless they paid to the defendant before a certain date the costs of a previous date of trial. These costs not having been paid, the action Was dismissed in terms of the consent order. Subsequently, in action No.2, the same plaintiffs sued the same defendant for a declaration of title in respect of land B.

Held, that the decree it action No. I was no bar to the claim in action No.2, despite the fact that the defendant had in action No.1 claimed title to the entire land.

APPEAL from a judgment of the District Court, Jaffna.

S. Sharvananda, with A. Nagendra, for the plaintiffs-appellants.

Frederick W. Obeyesekere, for the defendant-respondent.

Cur. adv. vult.

July 24, 1959. H. N. G. FERNANDO, J.

The plaintiffs in this action, stating themselves to be the Trustees of a charitable trust, sued for a declaration of title in respect of a land called "Paruththikadu and other parcels" in extent 231ms. and 16kls. In the description set out in the Schedule to the plaint, reference is made to a land on the East of 3 Ims and 2 kls alleged to be in the possession of the defendant, and it is stated that the two lands together formed one allotment.

Of the issues framed at the trial, the Judge decided only issue No.4 :

"Do the judgments and decrees in D. C. Jaffna cases Nos. 4853 and 10233 operate as resjudicata between the parties ?"

Action No. 4853 was filed by the plaintiffs against the present defendant in September 1948 for a declaration of title to the land of 3 1ms and 2 kls referred to above. On 29th August 1949 an order was made of consent that plaintiffs' action be dismissed unless they paid to the defendant before 19th October 1949 the costs of the last date of trial. These costs not having been paid, action No. 4853 was dismissed on 26th October 1949 in terms of that consent order. An appeal against the dismissal of this action was itself dismissed by the Supreme Court on 14th May 1951.

In an action No. 8342 one Muttucumaru sued the present plaintiffs (in their capacity as Trustees) on a money claim, and obtained decree. The land of 27 1ms, i.e. the two allotments one of 23 1ms 16 kls involved in the present plaint and the other of 3 lms and 2 kls involved in action No. 4853, was seized in execution of that decree, but the land was successfully claimed by the present defendant. Thereupon Muttucumaru instituted a section 247 action against the present defendant. He added the present plaintiffs also as defendants, stating that their title was in issue, but claiming no relief as against them. In both actions, namely in No. 4853 and the section 247 action, the present defendant set up the same title referring to