JUDGMENT Allsop, J. - This is a first appeal which has been listed with an application under Chap. V. R. 14-A of the rules of the Court. The application was that the appeal should be decided on a preliminary point without the printing of the records. This statement was perhaps not quite accurate, but the fact remains that the appeal has been listed before us and the arguments do not involve inspection of any documents on the record. We, therefore, proceed to decide it without putting the parties to the expense of printing or translation. 2. We may now mention the facts. One E.A. Hilt executed a mortgage in favour of Lala Debi Prasad to secure a debt of as. 5,000. The property mortgaged was a house in Lukerganj, Allahabad, and the deed was executed on 1-6-1923., It appears that Hilt paid up part of the debt and that he acknowledged that a sum of as. 2,000 was still due in 1929. He died on 12-4-1939. Thereafter his widow, Eliza Jane Hilt, his daughter, ivy Hilt, and six other persons instituted a suit for redemption of the mortgage on the basis of a claim that they were entitled at law to the estate of the deceased. The suit proceeded ex parte and a decree was passed in favour of the plaintiffs on the finding that a sum of as. 3,600 was due to (from?) them after the accounts had been taken. The defendant, who was the son of Lala Debi Prasad made every effort to get the ex parts decree set aside, but he failed to do so. He also took objections in the Court executing the decree, but those objections were equally unsuccessful. He then instituted the suit which has given rise to this appeal for the recovery of the amount due under the mortgage by sale of the mortgaged property. His excuse for instituting this new suit is that Eliza Jane Hilt and her daughter, Ivy Hilt, applied for probate of a will said to have been executed by the husband of the former, or applied for letters of administration with a copy of the will attached. The learned Judge of the Court below has held that the plaintiff's claim was barred by the rule of res judicata. The learned Judge of the Court below has held that the plaintiff's claim was barred by the rule of res judicata. It is argued in appeal that the previous decision was in favour of Eliza Jane Hilt, Ivy Hilt and the other plaintiffs in that suit on the basis of their being heirs at law of the testator whereas the present suit is filed against Eliza Jane Hilt and Ivy Hilt in their capacity of the executrices or administrators under the probate or letters of administration issued to them and that the previous decision cannot be res judicata because these two women litigated in the two suits in different capacities namely in the first suit in their personal capacity and in the later suit as executrices or administrators representing the estate of the testator. This point has been, urged before us at great length and with great vehemence by learned counsel on behalf of the appellant. He has quoted much authority for the proposition that a decision does not operate as res judicata when the person concerned has litigated in the two proceedings in different capacities or under a different title. We have no doubt that that is a correct proposition of law, but each case must be examined on its particular facts. In the case before us everybody who could possibly be interested in the estate of Hilt was a party to the first suit and the same persons are parties to the second suit. This is not a case where Eliza Jane Hilt and Ivy Hilt in their capacity as executrices or administrators are representing the interest of persons who were not represented in the previous suit. It is admitted that these two women are under the will the sole legatees. In their capacity as executrices or administrators they represent only their own interest as legatees. 3. We think as a general rule that a previous decision will not operate as res judicata in a subsequent suit if there is some interest in the subsequent suit which was not represented at all in the previous suit. In their capacity as executrices or administrators they represent only their own interest as legatees. 3. We think as a general rule that a previous decision will not operate as res judicata in a subsequent suit if there is some interest in the subsequent suit which was not represented at all in the previous suit. If the previous suit was instituted, for instance, by some person in his personal capacity and that person figured in a later suit in his capacity as a trustee, the decision in the first suit would not ordinarily bind the trust in the later suit, but if all the beneficiaries intereted in the trust had also been parties to the first suit, we do not think that the Court should allow the question at issue to be agitated again in the second suit. In our judgment, therefore, in the case before us the learned Judge was right in holding that the previous decision was res judicata and the plaintiff could not succeed in the second suit because the mortgage in his favour has already been redeemed. We may add that the plaintiffs in the previous suit were alleging that they represented the estate of Hilt and that they were the owners of the equity of redemption. As a decree was passed in their favour, it is also res judicata between the plaintiff in the present suit and the defendants that the persons entitled to redeem the mortgage had already redeemed it. 4. Learned counsel for the appellant also gave other grounds for urging that the previous decision was not binding upon his client. He said that the previous decision was based upon a fraud because the plaintiffs in the previous suit purposely concealed the existence of the will, the reason being that the testator had mentioned in the will that his house property was charged with debt and the statement would be in the nature of an admission. The reply is that no issue of fraud was raised in the Court below and we do not think that these would be the proper proceedings in which to raise it. The plaintiff could have got the previous decree set aside by instituting a suit on the basis of an allegation of fraud. The reply is that no issue of fraud was raised in the Court below and we do not think that these would be the proper proceedings in which to raise it. The plaintiff could have got the previous decree set aside by instituting a suit on the basis of an allegation of fraud. We cannot infer that the plaintiffs in the previous suit were guilty of any dishonest deception because at that time they did not choose to rely upon the will. 5. Another point is that the previous decision is void because the plaintiffs were debarred from making their claim under the provisions of SS. 212 and 213, Succession Act. The provisions of S. 213 did not apply to the previous suit because the plaintiffs were not relying upon a will. The provisions of S. 211 would apply if the plaintiffs were Anglo Indians and not Indian Christians. That is a question which again has never been put in issue and we do not think that the previous decree could be described as a valid [void?] decree because possibly the Court, if the matter had been brought to its notice, might have refused to pass a decree unless probate or letters of administration were produced. The decision may or may not have been based on a misconception but that would not make it void when the present plaintiff did not raise the issue in the previous suit. 6. Another point was that some of the plaintiffs in the present suit, that is, the sons of Radha Mohan Who was the son, of Debi Prasad, were not bound by the, previous decision because they were not parties to it and that they had acquired an interest in the mortgage on the death of Lala Debi Prasad. As their case was that there had been a partition in the family during the life time of Lala Debi Prasad and as the mortgagees rights were not ancestral property, it is not clear to us how they can have any claim to appear as plaintiffs at all. Learned counsel has also suggested that the defendants had not proved by positive evidence that the parties in the previous litigation were identical with the parties in the suit which has given rise to this appeal. Learned counsel has also suggested that the defendants had not proved by positive evidence that the parties in the previous litigation were identical with the parties in the suit which has given rise to this appeal. This point was not raised in the trial Court nor in the grounds of appeal before us and it is quite obvious that the defendants could not be called to produce evidence upon a point which was never put in issue between the parties. Nobody has the temerity positively to assert that the parties were different. 7. There is also an argument that some of the documents on which the learned Judge has relied are not properly admitted into evidence because the learned Judge has not put any exhibits upon them. This again is a point that was not raised in the grounds of appeal or in the trial Court. 8. Finally we may say that he took a point that the learned Judge who decided the first suit passed a decree for money against the mortgagee without passing a preliminary decree under the provisions of O. 34, R. 7, Civil P.C. His argument is that it cannot be said that the previous suit was "heard and decided' because, there being no preliminary decree the question of accounting did not properly arise and there was no occasion to hear the parties on that particular point. We cannot accept this argument. A date was fixed for the decision of the suit in the previous case and that meant that the parties were given an opportunity to be heard if they wished to be heard. The defendant did not appear and the suit was decided ex parte against him. It cannot be said that the suit was not heard and decided for the purposes of applying the rule of res judicata. 9. In our judgment, there is no force in this appeal as far as the merits of the case arise. We think, however, that the appellant has one definite grievance. The learned Judge of the Court below not only allowed separate costs for the two sets of defendants, that is, defendants 1 and 2, on one side, and the other defendants 3 to 8 on the other side, but he also allowed special costs u/s 35A, Civil P.C. to each of these parties. The learned Judge of the Court below not only allowed separate costs for the two sets of defendants, that is, defendants 1 and 2, on one side, and the other defendants 3 to 8 on the other side, but he also allowed special costs u/s 35A, Civil P.C. to each of these parties. We cannot say that he was not justified in allowing separate costs to the two sets of parties because their interests were indeed separate and the plaintiff appellant chose to implead them in the suit. When the suit failed, they were entitled to get the costs which they had incurred. We feel, however, that the learned Judge was quite unjustified in allowing costs under S. 35A, Civil P.C. It cannot be said that the suit was vexatious or frivolous. The plaintiff may have been quite honestly advised that the proposition of law on which he has relied in this Court was a correct proposition. It cannot be said that the point taken by the appellant is so absolutely unarguable that any suit filed on the basis of the law as suggested by the appellant would be frivolous or vexatious. The learned Judge was influenced by the fact that some clerks in his office seemed to have been guilty of carelessness or dishonesty in not bringing certain matters to his notice and he jumped to the conclusion that the plaintiff was responsible for the action of the clerks. That would not be a ground for allowing special costs. 10. We, therefore, dismiss the appeal except in so far as we modify the order for costs in the Court below. The parties will get their proportionate costs in appeal and the order for costs in the lower Court will stand except that the respondents will not be allowed the special costs under S. 35A, Civil P.C.