Judgment

SUBBA RAO, J. :- I have perused the judgment prepared by my learned brother Raghubar Dayal, J. I regret my inability to agree. I shall briefly give my reasons.

2. Raghubar Dayal, J. has stated the facts fully in his judgment. I need not restate them. The few facts relevant to the question raised are these : The appellant filed a petition in the Bombay High Court under Art. 226 of the Constitution raising the question that he was discharged as surety, and the High Court negatived his contention. In the suit from which the present appeal arises he again rises the plea that he was discharged as surety : in other words, he seeks to reopen in the present suit the finding given by the High Court in the writ petition. The question is whether the appellant is barred by res judicata to raise the said question in the suit.

3. Section 11 of the Code of Civil Procedure deals with the doctrine of res judicata in the context of a suit. It says, inter alia, that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit. To invoke this doctrine, the section lays down many conditions. The most essential condition is that the matter in question should have been directly and substantially in issue in a former suit. The expression "suit" has not been defined in the Code, but S. 26 thereof says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. It is not argued that an application under Art. 226 of the Constitution is a suit within the meaning of S. 26 or S. 11 of the Code. It follows, and indeed it is not disputed, that S. 11 of the Code does not bar the appellant from raising the question of the discharge of his suretyship again in the present suit.

4. But it is said that under the general principles of res judicata the Court would be barred to try his suit on the said issue. When the Code of Civil Procedure enacted S. 11 prescribing precisely when an earlier decision would be res judicata in a suit, it is not open to invoke the general principles of res judicata in the context of a subsequent suit, though the conditions laid down in the section were not satisfied, for otherwise the section would become nugatory : it would also introduce anomalies. A decision in a previous suit would not be res judicata in a subsequent suit unless the stringent conditions laid down in S. 11 of the Code were satisfied; whereas a decision in a proceeding which was not a suit would be res judicata whether or not the said conditions were complied with. If the fundamental requisites of res judicata were satisfied, a decision, if it fell under S. 11 of the Code, would be res judicata in a subsequent suit; and even if it did not fall thereunder, it would equally be res judicata. That could not have been the intention of the Legislature.

5. The cases cited at the Bar do not compel me to accept the construction which would lead to that result. The decisions of the Judicial Committee in Ramachandra Rao v. Ramachandra Rao, ILR 49 Ind App 129 : and Mst. Bhagwati v. Mst. Ram Kali, 66 Ind App 145 : and of this Court in Raj Lakshmi Dasi v. Banamali Sen, 1953 SCR 154 : may be explained on the ground that the proceeding under S. 18 of the Land Acquisition Act in the District Court wherein the title of the claimants would be put in issue were in substance a suit. The decisions of this Court in M. S. M. Sharma v. Dr. Shree Krishna Sinha, 1961-1 SCR 96 : Daryao v. State of U.P. 1962-1 SCR 574 : Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara, (1963) Supp (1) SCR 172 : and Devilal Modi v. Sales Tax Officer, Ratlam, Civil Appeal No. 249 of 1964, dated 7-10-l 964 : can be distinguished on the footing that the question of res judicata arose in an application either under Art. 226 or Art. 32 of the Constitution and not in a suit on the other hand, in Janakirama Iyer v. P. M. Nilakanta Iyer, (1962) Supp (1) SCR 206