JUDGMENT : Knox, J. The sole question we have to consider in this appeal is whether the learned Judge of the lower appellate Court has erred in law in holding that the question at issue between the parties to this suit is res judicata by reason of a decision obtained on the 9th December, 1901, in a former suit brought by the plaintiff against Nathu Mal and Musammat Mathri to recover possession of the mortgaged property. 2. The plaintiff's case in that suit was that he discharged the mortgage by payment of one-half of the mortgage money to Nathu Mal and Musammat Mathri and the other half to the present appellants, the representatives of one Mitter Sen. Nathu Mal and Musammat Mathri pleaded that they were entitled to receive the whole of the mortgage money, and that the payment of half of it to the representatives of Mitter Sen was of no effect. The previous suit was instituted on the 28th December, 1900, On 26th August, 1901, after issues had been framed, the present appellants were made parties to the suit as defendants, but no relief was asked against them, and indeed no relief could have been prayed for as the plaintiff and the added defendants were not at issue upon any point. In the result, the Officiating Subordinate Judge decided that Nathu Mal and Mathri were entitled to the whole of the money, and gave the plaintiff a decree on payment of Rs. 997 to Nathu Mal and Mathri. 3. In his judgment he went on to say that the other defendants, the present appellants, “appear to have no interest in the property in, dispute, and they are accordingly exempted from the plaintiff's claim in this case.” It is quite clear from the above judgment that the present appellant could have had no right of appeal, and it would, be an extraordinary thing to hold that where a party to a suit had no right of appeal, the decision in that suit should operate as res Judicata against him. We consider the case before us as very much on all fours with the decision of the Full Bench of the Calcutta High Court in Brojo Behari v. Kedar Nath, [1886] I.L.R., 12 Cal., 580. We consider the case before us as very much on all fours with the decision of the Full Bench of the Calcutta High Court in Brojo Behari v. Kedar Nath, [1886] I.L.R., 12 Cal., 580. As in that case so in this the matter now in issue was also raised and was formally determined in the previous suit, but that issue was hot “an issue between the same parties or between parties under whom the parties in this suit claim, As we have already said, there was in the former suit no matter in issue between the parties to the present suit. For these reasons “we allow the appeal, and setting aside the decree of the lower appellate Court, remand the case to that Court with directions to re-admit the appeal upon his file under its original number in the register and dispose of it according to law. The appellants are entitled to the costs of this appeal in any event, Other costs will abide the result. The objection under section 561 fails and is dismissed.