Judgment Sinha, J. 1. This is an appeal on behalf of the plaintiffs. The suit had been brought for declaration of title and recovery of possession in respect of lands covered by survey Khewat No. 1 situate in villages Bathaili Devi Jagtr and Khewat No. 1 in Kamalpur Jagir. According to the plaintiffs one Silanath Jha, ancestor or the defendants second-party, was the owner of these two tenures, and he also owned eight annas share in Kh-ewat No. 24 of Bathaili Dhanpat and other properties. Silanath Jha had executed a kebala in favour of Bankhandi. Rai, ancestor of the plaintiffs, in respect of the said tenures along with other lands on 7-2-1933, and after the purchase, the plaintiffs ancestor and thereafter the plaintiffs came in possession of the purchased lands including the lands in suit. One Bailsman Rai, ancestor of the defendants first party, had brought a money suit (Money Suit No. 20 of 1931) against Silanath Jha and his sons, the defendants second party, in which Bansman Rai had attached before judgment the share of Silanath Jha in the tenures aforesaid; and having obtained a money decree in that suit, put the decree into execution (Execution Case No. 6 of 1933) and purchased the properties in suit and eight annas share in khewat No. 24 at court auction sale on 1-1-1933. Bankhandi Rai, who had purchased the aforesaid properties by private transfer, filed an application under Order 21, Rule 90, Civil P. C. for setting aside the sale on 30-5-1933. On 18-11-1933, there was a compromise in the miscellaneous case under Order 21, Rule 90, Civil P. C., by which it was agreed that on payment of certain sum of money in two instalments by Bankhandi Rai, the sale would be set aside; and if there was any default in payment of the instalments, the sale would be confirmed. Bankhandi Rai made default, and the matter was put up before the executing Court on 29-5-1934, and on that date the. sale was confirmed. Bansman Rai, thereafter, took delivery of possession on 15-6-1934, 2. So far as khewat No. 24 was concerned, the landlord (Raj Darbhanga) had brought a, suit for rent (Rent Suit No. 2235 of 1932) against Silanath Jha and his sons. In execution of the decree for rent, khewat No. 24 was sold on 10-1-1934. sale was confirmed. Bansman Rai, thereafter, took delivery of possession on 15-6-1934, 2. So far as khewat No. 24 was concerned, the landlord (Raj Darbhanga) had brought a, suit for rent (Rent Suit No. 2235 of 1932) against Silanath Jha and his sons. In execution of the decree for rent, khewat No. 24 was sold on 10-1-1934. and purchased by Satyanarain Rai, plaintiff No. 1 son of the said Bankhandi Rai. Satyanarain Rai took delivery of possession on 10-2-1936 dispossessing Bansman Rai and others, including one Jagatanand and Kaushalya Dai, a daughter of Bansman Rai. Jagatanand and Kaushalya Dai had taken transfer of a portion of khewat No. 24 previously. After the death of Bansman Rai, his sons and his widow brought title suit No. 61 of 1936 for a declaration, that the decree obtained by the Darbhanga Raj was a money decree, that the execution which followed was a money execution and consequently the interest of the plaintiffs of that suit was not affected by the said sale, and for recovery oi possession, on the ground that Jagatanand and other part-transferees of khewat No. 24 had not been made parties to the rent suit or to the execution case. The trial Court held in that suit that the decree obtained by the Raj was a money decree and the execution was a money execution; but in spite of these findings, it dismissed the plaintiffs suit on the ground that the attachment made by Bailsman Rai in money suit No. 20 of 1931 was invalid and his title, therefore, could have no precedence over that of Bankhandi Rai, who had taken the kebala prior to the attachment referred to. There was an appeal against that judgment and decree" by the descendants of Bansman Rai, but the findings of the first Court were upheld and the appeal was dismissed. The plaintiffs in the present case contend that the finding in the said title suit about attachment in money suit No. 20 of 1931 being invalid is res judicata and the defendants in the present suit are bound by that finding. It is alleged by the plaintiffs that the purchase of the suit lands by their ancestor on 7-2-1933, being prior to the purchase by the ancestor of the defendants on 1-5-1933, at the court auction sale, they are entitled to the declaration and to recover possession. 3. It is alleged by the plaintiffs that the purchase of the suit lands by their ancestor on 7-2-1933, being prior to the purchase by the ancestor of the defendants on 1-5-1933, at the court auction sale, they are entitled to the declaration and to recover possession. 3. The defence is that the attachment before judgment in money suit no. 20 of 1931 was a valid attachment, and that the finding in title suit no. 61 of 193S in regard to the attachment is not res judicata, and further that the plaintiffs are estopped from challenging the sale in view of the fact that as a result of the compromise between Bankhandi Rai and Bansman Rai on 18-11-1933, the salf was held to be a good sale which was confirmed ultimately on 29-5-1934. 4. The trial Court held that the attachment was a good attachment, and that the plaintiffs ancestor having accepted the sale as a good sale by the compromise in p. 21. Rule 90, Civil P. C. proceedings, the plaintiffs were estopped from challenging the title of the defendants to the disputed lands, their ancestor having waived all objections to the sale as well as to the attachment in the aforesaid proceedings. In regard to res judicata it was held that the previous title suit related to different items of properly and was tried by a Court which would not have been competent to try the present suit having regard to the pecuniary jurisdiction or valuation, and, therefore, the plea of res judicata was not available to the plaintiffs. The suit was accordingly dismissed. 5. On appeal, it has been held that the decision regarding attachment in title suit No. 61 of 1936 was not res judicata for the reason that the question was not directly and substantially in issue in the previous suit. According to the Court below the utmost that could be said about the decision in that title suit was that the finding in regard to attachment was arrived at collaterally or incidentally, and while so holding, the lower appellate Court overruled the reasons given by the first Court for holding that the decision in the previous suit was not res judicata. The reasons given by the trial Court were that the properties in the two suits were not identical and that the Court which tried the previous suit would not have been competent to decide the subsequent suit having regard to the valuation. The learned Judge in the Court below further held that the plaintiffs were estopped from challenging the validity of the attachment because the objections in regard to attachment had been waived by the compromise aforesaid and the compromise was supported by agreement founded on valuable consideration and the plaintiffs cannot be allowed to turn round subsequently and try to enforce the right their ancestor had deliberately waived. In that view of the matter, he dismissed the appeal. 6. Learned Advocate General, appearing for the appellants, has submitted, firstly, that the finding about the invalidity of the attachmsnt in the previous title suit No. 61 of 1936 operates as res judicata between the parties; and secondly, that the Court below is wrong in holding that the plaintiffs are estopped from challenging the title of the defendants because of the terms of the compromise arrived at between the ancestors of the plaintiffs and the defendants in the proceedings under Order 21, Rule 90, Civil P. C. 7. In support of his contention, the learned Advocate General has relied upon -- Gokaran Prasad Singh V/s. Chhotey Narayan Singh, AIR 1951 Pat 695 (A); -- Gopinath Chobey V/s. Bhugwat Pershad, 10 Cal 697 (B) and -- Raghunath V/s. Issur Chunder, 11 Cal 153 (C). His contention is that although the present suit is valued at Rs. 2100.00 and the previous suit was valued at Rs. 700/-, for the application of the principle of res judicata the value of the present suit should be taken to be what it was at the time the previous suit had been brought, and, in that view of the matter, although the jurisdiction of the Munsif who tried the previous suit was limited to Rs. 2000/-, that Court was competent to try the present suit. I accept this contention as it is supported by the authorities mentioned above. It was then contended that the bar of res judicata is applicable, in a subsequent action, not only to cases where claim is laid to the same property but also to the same matter or issue as was directly and substantially in issue in the former litigation. I accept this contention as it is supported by the authorities mentioned above. It was then contended that the bar of res judicata is applicable, in a subsequent action, not only to cases where claim is laid to the same property but also to the same matter or issue as was directly and substantially in issue in the former litigation. It is suggested that although the properties in the present suit were not the subject-matter of the litigation in the previous suit, the issue in regard to attachment was directly and substantially in issue in the former litigation as it is in the present suit. It is, therefore, argued that the finding in the previous suit about the invalidity of the attachment in the money suit bars the trial of that issue in the present suit. Reliance for this proposition is placed upon the judgment of Reuben J. (as he then was) in the said Patna Case -- AIR 1951 Pat 595 (A), where his Lordship approved the following observation of Tek Chand, J. in -- Mt, Lachhmi V/s. Mt. Bhulli, AIR 1927 Lah 289 (FB) (D): "....the bar is applied in a subsequent action not only to cases where claim is laid to the same property but also to the same matter (or issue) as was directly and substantially in dispute in the former litigation; in other words, it is the identity of the issue and not the identity of the subject-matter which attracts the operation of the rule. This is what is described as estoppel by verdict." While I respectfully agree with the observation so made, I am unable to apply the principle to the present case. In the case which had to be dealt with by Reuben, J., the former and the subsequent litigation dealt with a part of the same property. In the present case, the property in suit and the property which was the subject-matter of the previous suit (title suit no, 61 of 1935) are different properties and the question at issue was about the attachment, valid or otherwise, of the property in that suit, if it was held that property had not been properly attached in that suit, I cannot find any reason to apply the principle of res judicata or estoppal by record to the present case where the properties are different. It is not unlikely mat where different properties are proceeded against, some of them may have been validly attached and some may not. In that view of the matter, in my opinion, the mere fact that it was held in the previous litigation that khewat No. 24 had not been properly attached, it cannot be said with any semblance of reason that the properties in suit, namely, khewat No. 1 in Bathaili Devi Jagir and Kamalpur Jagir were also not properly attached. I would, therefore, hold that the finding in regard to validity of attachment in title suit No. 61 of 1936 does not operate as res judicata between the parties in regard to the issue of attachment in respect of properties in the present suit," 8. The lower appellate Court has found, as a fact, as I have already mentioned, that the properties in the present case were not properly attached, and I am not inclined to go behind that rinding. Mr. De, appearing on behalf of the respondents, has contended that the question of attachment was not challenged in the plaint. In my opinion, there was no question of challenging the attachment by the plaintiffs. It was enough for them to have said in the plaint that their sale was prior in time to the auction sale in favour of the defendants or their ancestor. It was also enough for them to establish this fact, and if the defendants wanted to take advantage of a prior attachment before the sale to the plaintiffs ancestor, it was for them to have raised that plea. I do not find any substance in this contention of Mr. De. 9. The only question which remains to be decided now is, whether the plaintiffs are estopped from challenging the title of the defendants derived from the auction-purchase by their ancestor. Sec.115, Evidence Act, which embodies the principle of estoppel runs as follows: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, . to deny the truth of that thing." Judged in the light of this provision, in my judgment, there does not appear to be any estoppel against the plaintiffs in this suit. The compromise petition Ex. B has been referred to at the bar and is to be found at page 1 of the Paper Book, Part II. This compromise petition was filed by both the parties to the miscellaneous case, and it runs as follows: "It is submitted that a compromise has been arrived at between me the objector and the decree-holder in this manner that Rs. 2,543/- (Two thousand five hundred and forty three) the principal amount claimed and Rs. 90-31-0 (Rs. Ninety and annas eleven only) on account of interest from the date of auction-sale till this day in all Rs. 2.633-11-0 (Rs. Two thousand, six hundred and thirty-three and annas eleven only) is justly due to the decree-holder. According to compromise, I shall pay Rs. 2,333-11-0 aforesaid besides interest at the rate of 6 per cent per annum, from 18-11-33. I shall pay Rs. 2,633-11-0 aforesaid in two instalments, i.e., on 13-5-34 (I shall pay) half the amount together with interest at the above rate on the entire amount due, and the remaining half amount with interest on 18-11-34 to the decree-holder. After full payment of both the instalments as compromised above, the sale will be set aside. In case I the objector fail to pay the first instalment together with interest, the sale will remain intact. I the objector shall have no objection to that. The parties shall bear their own costs in this objection case. It is therefore prayed that this case be decided in terms of the compromise petition. Dated 18-11-33." This compromise petition does not disclose that, any statement amounting to any representation was made by the objector in that miscellaneous case, and upon the footing of that representation, anything was done by the decree-holder. The objector had promised to pay a certain sum of money in two instalments. The terms of the compromise declared that if there was any default in payment, the sale shall be confirmed. No payment was made, and the result was that the sale was confirmed. The objector had promised to pay a certain sum of money in two instalments. The terms of the compromise declared that if there was any default in payment, the sale shall be confirmed. No payment was made, and the result was that the sale was confirmed. I do not see how the terms in that compromise petition would estop the plaintiffs from challenging- the title of the defendants, which, in my opinion is quite different from challenging the sale in execution of the decree. I can quite see that the defendants would be fully protected if the plaintiffs were to challenge the validity of the sale in the execution case. What the plaintiffs purport to say is that the sale may be a good sale, there may be no defect of procedure in conducting or publishing the sale; but what the defendants ancestor did purchase gave him no title, because previous to that auction sale, the title of the judgment-debtors of that money execution case had already been transferred to the plaintiffs ancestor. 10. Mr. De placed reliance on -- Uttam Chandra V/s. Khetra Nath, 29 Cal 577 (E), but the facts of that case were entirely different. In that case, there was a proceeding to set aside the sale on the ground of irregularity and fraud, and there was a compromise petition filed in that case by which it was agreed that the judgment-debtor should have time up to a certain date to pay up the full amount of the decree and then the sale should be set aside; but if he failed, the sale should stand good. The judgment-debtor paid a certain portion of the money and obtained further time from the Court to pay the balance. On the judgment-debtors tendering the balance on the date fixed by the Court, the decree-holder refused to accept the money. The Court tried the case on merits and set aside the sale. It was held in that case that the judgment-debtor was bound by the agreement and that lie was estopped from contesting the legality of the sale. That case has got nothing to do with the facts of this case. Mr. The Court tried the case on merits and set aside the sale. It was held in that case that the judgment-debtor was bound by the agreement and that lie was estopped from contesting the legality of the sale. That case has got nothing to do with the facts of this case. Mr. De also urged that failure to attach a property is a material irregularity in publishing and conducting the sale, and, therefore, if the sale was confirmed by compromise, inference should follow that the objector accented the validity of the attachment. He relied upon the cases of -- Sheodhyan V/s. Bholanata, 21 All 311 (P) and -- Raja Wazir Narain Singh V/s. Bhikhari Ram, AIR 1923 Pat 45 (G) for the proposition that failure to attach a property amounts to material irregularity within the meaning of Order 21, Rule 90, Civil P. C., and that ( a plea of?) omission to attach a property can be taken in a proceeding under O 21 Rule 90, Civil P. C. In the Allahabad case, it was held that the absence of an attachment prior to the sale of immovable property in execution of a decree amounts to no more than a material irregularity, but is not sufficient, until substantial injury is caused thereby, to vitiate the sale. In the Patna case, it was held that any execution sale of immovable property is not void merely by reason of omission, to attach the property before sale, al though such omission to attach is a mere irregularity under the Code of Civil Procedure. in my view these authorities have no direct bearing on the question at issue in this ease. The sale in question could have been confirmed even though there was defeet in attachment or there was no attachment at all. Were improper attachment before sale does not vitiate the sale unless the improper attachment is coupled with substantial injury. The mere fact that as a result of the compromise, the sale was confirmed does not, in my judgment, show, even inferentially, that those who were panics to the compromise accepted the validity of the attachment. In that view of the matter, I am of the opinion that the plaintiffs are not estopped from challenging the titie of the defendants in regard to the property in suit. In that view of the matter, I am of the opinion that the plaintiffs are not estopped from challenging the titie of the defendants in regard to the property in suit. As there was, upon the findings, no attachment of the properties in suit, the sale deed in favour of the ancestor of the plaintiffs dated 7-2-1933, must have precedence over the auction sale held on 1-5-1953 in favour of the ancestor of the defendants. I would accordingly set aside the judgment and decree of the Courts below and decree the plaintiffs suit. The appeal is, therefore, allow ed with coats throughout.