Bhandari, C.J. - (1.) This appeal raises the question whether a person who is merely a formal party to an action and against whom no relief is claimed is bound by or entitled to the benefits of the rules of 'res judicata'?
(2.) The facts of the case are simple and not in dispute. On 22-8-1945 one Geeta Ram brought a suit against S. Arjan Singh defendant 1 for a mandatory injunction restraining him from putting up any structure on a courtyard belonging jointly to the plaintiff and defendants 1 to 7 and requiring him to demolish any structure which had already been constructed. Defendants 1 to 7 were impleaded as defendants but relief was claimed only against defendant 1 and none against defendants 2 to 7. Defendants 2 to 7 failed to appear in Court and 'ex parte' proceedings were taken against them. On 18-6-1947 the trial Court passed a decree in favour of the plaintiff, the relevant portion of which is in the following terms:- "It is hereby ordered that an 'ex parte' decree for permanent injunction in accordance with the prayer in the plaint be passed in favour of the plaintiff against defendant 1. Defendants 2 to T are 'pro forma'". When the plaintiff proceeded to execute the decree for the demolition of the building which had been constructed on the courtyard belonging jointly to the plaintiff and the defendants, Prithvi Singh and Nand Avtar Singh defendants 6 and 7 raised certain objections under Section 47 and Order 9 Rule 13, Civil P. C. They alleged that the decree was not executable against them for various reasons, among others being: (a) that an 'ex parte' decree had been passed against them; (b) that the decree had been passed against defendant 1 alone and no one else; (c) that defendants 2 to 7 had been described in the plaint as 'pro forma'; and (d) that no relief had been claimed, and no decree awarded, against them. The Subordinate Judge came to the conclusion that defendants 2 to 7 were parties to the suit, that they had full opportunity to contest the claim of the plaintiff on all the grounds available to them and that as they did not avail of the opportunity which was open to them they were estopped by the doctrine of 'res judicata', from reagitating the case under Section 47, Civil P. C. He accordingly dismissed the objections and the order of the trial Court was upheld by the Senior Subordinate Judge in appeal. A learned Single Judge of this Court, however, came to a contrary conclusion. He held that as defendants 2 to 7 were only a formal party and as no relief was claimed against them their right to object to the execution of the decree was not barred by the rule of 'res judicata'. He accordingly allowed the appeal, set aside the order of the Courts below and declared that defendants 2 to 7 are at liberty to take the objections which had been raised by them. Geeta Ram plaintiff is dissatisfied with the order and has come to this Court in appeal under Clause 10 of the Letters Patent.
(3.) The decision of the question as to who are parties to a particular suit is not always free from difficulty. Ordinarily a judgment rendered in a particular case affects only those who are parties to the suit or are in privity with the parties, for a judgment cannot be allowed to operate to the detriment of a stranger. 'Prima facie' the parties to a judgment include persons who are named as such in the record but this general statement is subject to certain well-recognised exceptions. The first is that not only should a person's name appear in the record at a party but that it should appear on the record at the time of the rendition of a valid judgment 'Gobind Chunder v. Taruck Chunder', 3 Cal 145 (FB) (A); 'Kalee Coomar Dutt v. Fran Kishore', 18 Suth WR 29 (B). The second is that there must be not only an Identity of parties but an identity in the quality, character or capacity in which they appear. A party acting in one capacity or in one right cannot be affected by a judgment when acting in some other capacity of right.;