Order of Reference to a Bench. The question in this second appeal is one of res judicata. The relevant facts necessary to appreciate the question may be briefly narrated. The plaint schedule property originally belonged to one Khasim. His wife Yelli sold the same for a sum of Rs. 100 to the plaintiff, Tagaram Bichalu, under a sale deed, Exhibit P-I, dated 28th May, 1936. Ore Gogireddi Narasamma as guardian cf her minor sen Vengayya filed O.S. No. 589 of 1936 or the file cf the Court of the District Munsif of Gurzala on promissory notes alleged to have been executed by Yelli, and obtained a decree therein. The aforesaid property was attached before judgment and subsequently a decree was passed in the suit. The plaintiff filed a claim petition, E.A. No. 378 of 1940, basing his title on the sale deed Exhibit P-1 in his favour. The claim petition was allowed. The decree-holder filed O.S. No. 480 of 1941 for setting aside this claim order. To that suit the plaintiff was made the first defendant and Yelli, the second defendant. The second defendant was ex parte. The learned District Munsif held oh the evidence that there was no necessity to sell the property, that the alleged sale was net supported by consideration and that it was taken fraudulently only to avoid the debt due to the creditor. He also accepted the evidence adduced on the side of the plaintiff that the second defendant continued to be in possession after the alleged sale. In short the finding of the District Munsif was that the sale deed was executed nominally’ to defraud the rights of the decree-holder. It appears that, after the said judgment, the decree in O.S. No. 589 of 1936 was discharged by the plaintiff depositing the decree amount in Court on 22nd June, 1945. The plaintiff thereupon filed O.S. No. 175 of 1945 on the file of the Court of the District Munsif of Gurzala for a declaration of his right to the suit properly and for an injunction restraining the defendants from interfering with the plaintiff’s possession. The defendant in the present suit claims to have purchased property from Yelli under Exhibit D-4, dated 24th January, 1944. The defendant in the present suit claims to have purchased property from Yelli under Exhibit D-4, dated 24th January, 1944. The learned District Munsif held on the evidence that the sale deed, dated 28th May, 1936, executed by Yelli in favour of the plaintiff was a nominal and sham transaction and that the sale in favour of the defendant was true and supported by consideration. In the result, he dismissed the suit. In appeal, the learned Subordinate Judge of Guntur held that Exhibit P-1, the sale deed in favour 6f the plaintiff, was a bona fide transaction supported by consideration. When it was argued that the finding given by the District Munsif in O.S. No. 480 of 1941 would preclude the plaintiff, from re-asserting his title in the present suit on the principle of res judicata, the learned Subordinate Judge following the decision in Narasimhachariar v. Raghava Padayachi1held that it was not barred by res judicata. The first defendant preferred the above second appeal. Two questions were raised before me: (1) that the finding of the lower Court that Exhibit P-1 was bona fide and supported by consideration was wrong; and (2) that the plaintiff’s suit was barred by res judicata in view cf the decision in O.S. No. 480 of 1941. The first question is essentially one of fact and it is not permissible to canvass its correctness in a second appeal. I, therefore, accept the finding of the lower Court. On the second question, the learned counsel for the appellant contended that the finding of the learned District Munsif in O.S. No. 480 of 1941 would operate as res judicata between the parties in the present suit as that decision between the defendants was necessary for giving relief to the plaintiff in that suit. As aforesaid, the plaintiff in that suit was the creditor; the first defendant was the present plaintiff and the second defendant was Yelli. The defendant in the present suit is claiming under that Yelli. The title of the suit property was in issue between the defendants and that was necessary for giving relief to the creditor, for the creditor would be entitled to execute his decree only if the title of Yelli was established. His suit would be dismissed if the first defendant’s title was recognised. The title of the suit property was in issue between the defendants and that was necessary for giving relief to the creditor, for the creditor would be entitled to execute his decree only if the title of Yelli was established. His suit would be dismissed if the first defendant’s title was recognised. Tie scope of the doctrine of res judicata between co-defendants was stated in clear terms by the Judicial Committee in Munni Bibi v. Tirloki Nath2. The facts in that case were: In 1909 the holder of the decree against the appellant’s father had sued for a declaration that he was entitled to execute the decree against the house; he joined as defendants the appellant, who did not appear, and a Hindu female who then represented the estate which had since devolved upon the respondents. It was held therein that the decree could be executed against the house. In 1919, the appellant brought the suit which went up to the Privy Council against the respondents claiming possession of the same house. The Judicial Committee held that the decision of the suit in 1909, the title to the house was res judicata in favour of the appellant as between her and her co-defendant, and the decree was equally binding upon the respondents as reversionary heirs in the absence of proof that it was obtained by fraud or collusion. The principle was stated as follows at page 111: “In such a case, therefore, three conditions are requisite: (1) There must be a conflict of interest between the. defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided.” Their Lordships applied the principle of res judicata, notwithstanding the fact that one of the defendants was ex parte in the prior suit. The facts of the present case are similar to those found in the aforesaid decision. If the conditions laid down by the Judicial Committee are applied to the present case, it follows that the decision in O.S. No. 480 of 1941 would preclude the plaintiff from reagitating the question of title on the principle cf res judicata. But it was contended that that judgment had no application to. If the conditions laid down by the Judicial Committee are applied to the present case, it follows that the decision in O.S. No. 480 of 1941 would preclude the plaintiff from reagitating the question of title on the principle cf res judicata. But it was contended that that judgment had no application to. a case where the earlier decision was given in a claim suit, for it was said that the operation of such a decision was only confined to that suit and to the execution proceedings in regard to which that suit was filed. . For the said proposition, reliance was placed on the Full Bench decision in Narasimhachariar v. Raghava Padayachi1. In that case the question was whether the order passed dismissing the objection preferred to an attachment under Order 21, rule 58, Civil Procedure Code, no suit having been filed under rule 63, would operate beyond the proceedings in execution of that particular decree. Though there was no claim suit in that case, the learned Judges made observations which would cover a case where such a suit also was filed. At page 88 Leach, C.J., observed: “Subject to the operation of the doctrine of res judicata in any particular case, we hold that an order on a claim petition filed under Order 21, rule 58 or a decree in a suit filed under rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings.” Horwill, J., applied the Full Bench decision to the following facts in Angathevan v. Natarajan Chettiar2. In the case before the learned Judge, a property was brought to sale in execution of an earlier decree. In the execution proceedings the question arose whether the property in dispute was that the first defendant, or whether it was the property in which the third defendant had a share which could be attached and sold in execution of the decree against him. It was held that the third defendant did have a share in the property. The same question arose in execution of another decree. Horwill,. J., relying upon the Full Bench decision held that it would not operate as res judicata. It was held that the third defendant did have a share in the property. The same question arose in execution of another decree. Horwill,. J., relying upon the Full Bench decision held that it would not operate as res judicata. It is not clear from the facts stated in the judgment whether the previous question was decided in a suit between the parties; but from the observations made by the learned Judges it looks as if such a finding was giver in an earlier suit, for, the learned Judge says: “It is, however, unnecessary to decide whether the ordinary rule of res judicata between co-defendants would here apply; because it was held in Narasimhachariar v. Raghava padayachi.1that a decision in a claim suit as well as in the claim petition has no application beyond the execution of the decree which had given rise to those proceedings. It is true that it was not necessary for the Full Bench in Narasimhachariar v. Raghava Padayaehi1to consider whether the decision in a claim suit operated as res judicata in proceedings in execution of another decree; but the learned Judges clearly felt it necessary to decide that question in order to set at rest the conflicts and uncertainties arising out of the previous decisions. The point was carefully considered and the learned Judges were of opinion that a claim suit, arising as it does out of claim proceedings, has relationship only to the particular decree that was being executed.” Prima facie these observations appear to me rather wide and not warranted by the decision of the Full Bench. The Full Bench did not decide that section 11, Civil Procedure Code, was abrogated by some other principle of law specially applicable to suits filed to set aside claim orders. The Full Bench did not decide that section 11, Civil Procedure Code, was abrogated by some other principle of law specially applicable to suits filed to set aside claim orders. Indeed, the learned Judges took special care not to entrench upon the principle of res judicata, when they stated as follows at page 88: “Subject to the operation of doctrine of res judicata in any particular case, we hold that an order on a claim petition filed under Order 21, rule 58, or a decree in a suit under rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings.” I am inclined to take the view, that the Full Bench decision is not in the way of my holding that the decision in O.S. No. 480 of 1941 would operate as resjudicata.But as this question is likely to arise frequently and as the parties appear to be poor and therefore may not be in a position to file a Letters Patent Appeal against my judgment, I think it is proper and advisable that this matter should be referred to a Bench for the purpose of elucidating the scope of the Full Bench decision in Narasimhachariar v. Raghava Padayaehi1. I therefore refer this second appeal to a Bench. (Pursuant to an Order of Reference to the Bench by Subba Rao, J., dated 18th July, 1951, this appeal coming on for hearing the Court delivered the following) Judgment.) The Judgment of the Court was delivered by Chandra Reddi, J.-The question referred to the Bench is whether a judgment rendered in an earlier suir filed under. Order 21 rule 63 to which the claimant, the decree-holder, and judgment-debtors were impleaded as parties could operate as res judicata in a subsequent suit between the claimant and a representative in interest of the judgment-debtor. The facts of the case are fully set out in the order of reference; but for an appreciation of the question involved in this case we may briefly state a few facts. The suit property originally belonged to one Khasim. Subsequent to his death his widow Yelli sold the same for a stated consideration of Rs. 100 to the plaintiff under Exhibit P-1, dated 28th May, 1936. A creditor of Yelli filed O.S. No. 589 of 1936 and obtained a decree. The suit property originally belonged to one Khasim. Subsequent to his death his widow Yelli sold the same for a stated consideration of Rs. 100 to the plaintiff under Exhibit P-1, dated 28th May, 1936. A creditor of Yelli filed O.S. No. 589 of 1936 and obtained a decree. Prior to judgment the suit property was attached when the plaintiff intervened with a claim based on Exhibit P-1. This claim was allowed which led to the filing of a suit by the creditor, O.S. No. 480 of 1941 for vacating the claim order. To that suit were impleaded not only the claimant, i.e., the present plaintiff, but the judgment-debtor as well. In the suit it was decided that the property continued to be that of Yelli despite Exhibit P-1 for the reason that Exhibit P-1 was a sham and nominal transaction and was liable to be attacked. Consequent upon this decision Yelli sold the property to the defendant for a stated consideration of Rs. 300, a portion of which was for discharging the decree debt in O.S. No. 589 of 1936. Subsequently, i.e., on 22nd June, 1945, the present plaintiff deposited the decree amount into Court. But as already the decree was discharged, the amount deposited by the present plaintiff was not utilised ami he was informed of the same. Consequently the plaintiff has filed this suit for a declaration of his title and for an injunction restraining the defendant from interfering with his possession. The defendant filed a written statement contending inter alia that the finding that the property continued to be that of Yelli was res judicata, that Exhibit P-1 was a sham and nominal transaction and would not therefore bind him and hence his sale had a priority over that of the plaintiff. The trial Court dismissed the suit accepting the defence. On appeal the Subordinate Judge of Guntur reversed the finding of the trial Court and decreed the suit holding that the sale in favour of the plaintiff was a bona fide transaction. The Subordinate Judge negatived the contention urged on behalf of the defendant in support of the judgment that the decision in O.S. No. 480 of 1941 operated as res judicata. In support of its view that it did not operate as res judicata the lower appellate Court relied on a ruling of a Full Bench of this Court in Narasimhachariar v. Raghava Padayachi1. In support of its view that it did not operate as res judicata the lower appellate Court relied on a ruling of a Full Bench of this Court in Narasimhachariar v. Raghava Padayachi1. The defendant who is aggrieved by the judgment and decree of the lower appellate Court has preferred this second appeal. When the matter came on for hearing before Subba Rao, J., after deciding that the finding of the lower appellate Court that Exhibit P-1 was not a sham and nominal transaction but was a bona fide one was binding upon the second appellate Court, he referred the matter to a Bench as he was of opinion that the question stated above was of considerable importance and in view of a ruling of Horwill, J., in Angathevan v. Natarajan Chettiar2. The learned Judge was inclined to disagree with Horwill, J., and take the view that the decision in the earlier suit would operate as res judicata in the present suit. However he referred the matter to a Bench as he thought that an authoritative ruling should be given on this question. Therefore the point for consideration in this second appeal is„ whether the present suit is affected by the doctrine of res judicata in view of the finding in O.S. No. 480 of 1941 that the transaction evidenced by Exhibit P-1 was not a genuine one. The principle of res judicata as applicable to co-defendants is laid down by the Judicial Committee of the Privy Council tersely in Munni Bibi v. Tirloki Nath3In that case the property, a house in Agra which formed the subject-matter of decision by the Judicial Committee, originally belonged to one Joti Prasad, his wife being one Mukhandi. They had two sons by name Bishamber Nath and Amar Nath and two daughters, Ratan Dei and Kashi. Prior to his death Joti gifted this property to his wife; but this was not accompanied by possession: In the partition between the two sons of Joti after his death, they treated the property in dispute as a partible asset ignoring the gift deed in favour of their mother and the property was allotted to the share of Amar Nath. The latter who was very much involved in debts subjected all his properties including the house in question to a mortgage and on the foot of that mortgage a decree was obtained. The latter who was very much involved in debts subjected all his properties including the house in question to a mortgage and on the foot of that mortgage a decree was obtained. There were various proceedings in respect of this property and it is not necessary to allude to-all of them. Suffice it to say that by 1908 the property happened to be 111 the possession of a donee from one of the daughters of Mukhandi, the root of title being the sift deed in favour of Mukhandi. In or about the year 1908 an assignee ci a decree against Amar Nath proceeded to attach the property as belonging to Amar Nath The person in possession of the property objected to the attachment and the objection was allowed. Thereupon, the assignee decree-holder instituted a suit for setting aside the summary order and for a declaration of his right to proceed against the property in question in execution of his decree. To this suit were added as parties not only the heirs of Mukhandi but also the daughter of Amar Nath, Munni Bibi, both Amar Nath and his widow having been dead by that time. The claim of the decree-holder to proceed against the properties was upheld and the suit was decreed. But the property was not allowed to be sold in execution as one of the maternal grandsons of Mukhandi discharged the decree Subsequently Munni Bibi, the daughter of Amar Nath, instituted a suit for a declaration that that was the property of Amar Nath and for recovery thereof. One of the questions that arose for consideration was whether the decision in the earlier suit that the property was that of Amar Nath and that the heirs of Mukhandi had no title thereto operated, as res judicata or not. Their Lordships decided that it operated as res judicata For judging whether a decision was res judicata as between co-defendants or not their Lordships propounded three tests:(1) There must be a conflict of interest between the defendants concerned, (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims, and (3) the question between the defendants must have been finally decided. As their Lordships thought that that case satisfied all the three tests requisite for the decision that it operated as res judicata, they held that the judgment in, the earlier suit operated as res judicata In coming to. the conclusion that it operated as res judicata their Lordships relied upon the dictum laid down by Wigram, V.G., in Cothngham v. Earl of Shrewsbury1: “If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants will be bound, but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.” In our opinion the present matter comes within the scope cf the ruling in Munni Bibi v. Tirloki Nath2. As in the lower appellate Court, here Mr. Suryanarayana Rao, learned counsel for the respondent, relied on a decision cf the Full Bench in Narasimhachanar v. Rqghava Padqyachi3. We shall now examine that ruling to see if it helps the respond-ents in any way. There in a suit on a mortgage, a personal decree was given against the mortgager and in execution of the personal decree seme properties were attached as belonging to the mortgagor. The mortgagor’s brothers filed a petition claiming the properties as their own. The claim was allowed, but as the decree was otherwise satisfied, the decree-bolder did not take any steps to vacate the summary order. Subsequently in execution of another mortgage decree obtained against the same judgment-debtor, the same properties happened to be attached as properties belonging to him. His brothers again preferred a claim to these properties. The question arose whether the order in the claim proceedings that the property did not belong to the judgment-debtor operated as res judicata. The Full Bench decided that the rule of res judicata has no application to that case for the reason that an order under Order 21, rule 58 was conclusive only in respect of execution of a decree which has given rise to the proceedings. The Full Bench decided that the rule of res judicata has no application to that case for the reason that an order under Order 21, rule 58 was conclusive only in respect of execution of a decree which has given rise to the proceedings. The learned Judges thought that the conclusiveness attached only to the rights worked out in pursuance of attachment in execution of the decree and did not extend beyond the execution of the decree giving rise to those proceedings. In that view they overruled the decision of a Bench of this Court in Singariah Chetty v. Chinnabbi1. Referring to Kumara Goundan v. Thevarqya Reddi2which doubted the correctness of Singariah Chetty v. Chinnabbi1, the learned Chief Justice who delivered the judgment on behalf of the Full Bench observed as follows: “The opinion expressed by Ramesam, J., in Kumara Goundan v. Thevarqya Reddi2, that the filing of a suit under Order 21, rule 63 makes all the difference cannot be accepted without qualification. It is conclusive between the parties to the suit or their representatives so far as the execution of the particular decree is concerned; but, where the property is sold in execution proceedings arising out of an entirely different decree, the claimant will not be precluded from setting up his title as against a stranger purchaser.” It is these observations that have given rise to the contention that a decision given in a suit under Order 21, rule 63 would not operate as res judicata in a subsequent suit based on an entirely different cause of action and which also formed the basis of the ruling in Angathevan v. Natarajan Chettti3. In that case a decree-holder attached certain property as belonging to the judgment-debtor. The property attached was claimed by a third party as belonging tc him exclusively which resulted in the claim being allowed. Thereupon the decree-holder seems to have instituted a suit for setting aside the summary order. In the suit a decision was given that the judgment-debtor has a share in the property, it being the property of the joint family and so liable to be sold in execution of the decree. In a subsequent suit the same question arose in execution of another decree. When the matter came up in second appeal to this Court Horwill, J., relying on Narasimhachariar v. Raghava Padayachi1held that it did not operate as res judicata. In a subsequent suit the same question arose in execution of another decree. When the matter came up in second appeal to this Court Horwill, J., relying on Narasimhachariar v. Raghava Padayachi1held that it did not operate as res judicata. The learned Judge expressed the opinion that that case was governed by Narasimhachariar v. Raghava Padayachi4though in Narasimhachariar v. Raghava Padayachi4there was no suit under Order 21, rule 63 to vacate the summary order. He remarked: "It is true that it was not necessary for the Full Bench in Narasimhachariar v. Raghava Padayachi4to consider whether the decision in a claim suit operated as res judicata in proceedings in execution of another decree; but the learned Judges clearly felt it necessary to decide that question in order to set at rest the conflicts and uncertainties arising out of previous decisions. The point was carefully considered, and the learned Judges were of opinion that a claim suit, arising as it does out of claim proceedings, has relationship only to the particular decree that was being executed." We do not think that the observations in Narasimhachariar v. Raghava Padayachi4, lend themselves to the interpretation that in no case will the decision given in a suit under Order 21, rule 63 with reference to title to property would operate as res judicata in a subsequent suit. That this is so is clear from the observations of the learned Judges at page 88 of the same report: "Subject to the operation of the doctrine of res judicata in any particular case, we hold that an order on a claim petition filed under Order 21, rule 58, or a decree in a suit filed under rule.63 does not extend beyond the execution of the decree which has given rise to those proceedings." It is clear from this statement of law that the learned Judges did not intend to lay down that in no case would the doctrine of res judicata apply to a decision given under Order 21, rule 63. The earlier observations must be understood in the light of this later statement of law contained in the same judgment and we may take it that the former related to a case where the rule of res judicata would have no application, as for instance, in a suit instituted by the claimant or by the decree-holder, the judgment-debtor was not made a party and the right was only between the claimant and the decree-holder. Viewed in that light we think there is no conflict between the two statements of law contained in the same judgment. We should not assume that the learned Judges laid down a conflicting dicta. In these circumstances in our judgment the decision in Narasimhachariar v. Raghava Padayachi1is not in any way conflicting with the ruling in Munni Bibi v. Tirloki Nath2and does not carry the respondent very far. In our opinion the judgment given in the earlier suit under Order 21, rule 63 would operate as res judicata as between co-defendants provided the three requisite conditions for the applicability of the rule of res judicata mentioned above are satisfied. In these circumstances we answer the reference in the affirmative and direct the dismissal of the suit. This is a fit case in which we should direct each party to bear his own costs throughout. V.S. ----- Appeal allowed.