JUDGMENT Niamatullah, J.
1. This appeal has arisen out of a Suit brought by the plaintiff-appellant for recovery from the defendant of the Government revenue of which the plaintiff is the assignee. The Court of first instance, an Honorary Assistant Collector, dismissed it as barred by the provisions of Order 2, Rule 2, Civil P.C. The lower appellate Court decreed the claim with interest disagreeing with the first Court ar regards the plea of bar created by Order 2, Rule 2, Civil P.C. The defendant has preferred this second appeal which raises two questions viz., (1) whether the, suit is barred by Order 2, Rule 2, Civil P.C. as held by the Court of first instance and (2) whether the plaintiff-respondent is entitled to interest on arrears of revenue.
2. It appears that the Government revenue of the village has been assigned to a class of persons who collect it from the landholders liable to pay the same. Manohar Lal is an assignee to the extent of eight shares in patti No. 6. Similarly Venkateshwar is entitled to four shares. Plaintiff is the mortgagee of both the aforesaid persons and entitled in that capacity to collect the revenue of their respective shares. Plaintiff brought a suit for recovery of revenue due in respect of the four shares belonging to Venkateshwar and subsequently brought the suit giving rise to the present appeal for recovery of revenue due in respect of the eight shares belonging to Manohar Lal. The view taken by the learned District Judge is so manifestly correct that I do not propose to deal with the question at any length. The plaintiff has a separate cause of action for each of the two suits, claiming, as he does under two different titles, reliefs in respect of two distinct properties. If Manohar Lal and Venkateshwar had brought separate suits no question as to relinquishment under Order 2, Rule 2, Civil P.C., could arise. It cannot likewise arise if their mortgagee who happens to be the same person brings such suits. This ground of appeal must, therefore fail.
3. On the second question the appeal must succeed. The learned District Judge concedes that no interest is payable under Section 161, Tenancy Act 2 of 1901. The right to interest depends on contract express or implied or on some rule of law allowing it; Kalyan Das v. Maqbul Ahmad A.I.R. 1918 P.C. 53. Section 143, Land Revenue Act, declares that no interest is to be paid to the Government on arrears of revenue. The assignee of the Government revenue is in no better position: see Chandi Prasad v. Mahendra Singh [1900] 23 All. 23 All. 5. It is a debatable question whether an interest by way of damages can be awarded to an assignee of the Government revenue. It is not necessary to decide this question as it was not raised in the lower Court and I have not been asked to award interest as damages. The claim to interest is based on the ground that in a previous suit between the parties relating to the eight shares in respect of which revenue is now claimed, interest had been claimed and an ex-parte decree was passed. The liability of the defendant to pay interest is said to be res judicata. The learned District Judge has upheld the plea of res judicata and decreed interest.
4. Where an issue of law or fact is raised and decided ex-parte it is now settled law that the adjudication will operate as res judicata but where a certain amount is claimed as revenue or rent for certain years with interest and is decreed ex parte in terms of the prayer all the requirements of the rule of res judicata are not necessarily fulfilled in a subsequent contested suit in which the plaintiff's right to receive interest is specifically in question. Unless the finding in the previous suit expressly or by necessary implication decides the question of a recurring right to receive interest as distinguished from a mere award of the interest claimed for the arrears in respect of the years then in suit the previous decision cannot operate as res judicata so as to entitle the plaintiff to receive interest on arrears of revenue or rent accruing due subsequently though he is not, apart from res judicata, so entitled.
5. It is not ascertainable from the proceedings of the previous suit whether interest was claimed under some alleged rule of law or as damages. If it was claimed as damages and the Court decreed as such it can have no greater effect than to establish the plaintiffs right to interest by way of damages for the default then in question. A subsequent default under different circumstances will not necessarily entitle the plaintiff to damages.
6. A Full Bench of the Calcutta High Court had held in Modhusudan Shaha v. Brae [1889] 16 Cal. 300 (F.B.) that a mere statement of an alleged rate of rent in a plaint in a rent suit in which an ex-parte decree has been obtained, is not a statement as to which it must be held that an issue within the meaning of Section 13, Civil P.C., was raised between the parties so that the defendant is concluded upon it by such decree.
Neither a recital in the decree of the rate of rent alleged by the plaintiff, nor a declaration in it as to the rate of rent which the Court considers to have been proved, would operate in such a case so as to make that matter a res judicata, assuming that no such declaration were asked for in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case.
7. This has been consistently followed in that Court in numerous subsequent decisions. The Patna High Court has taken the same view. In Pitamber Chowdhri v. Rahmat Ali A.I.R. 1922 Pat 303 it was held that:
a previous decree for cess does not operate as res judicata, inasmuch as a cess is a recurring charge.
8. The case of Vishnu Vasudeo v. Ramling Bhickling [1902] 26 Bom. 25 proceeds on the same "principle. In some of the Calcutta cases certain observations have too broadly put the proposition that an ex-parte decree in respect of specified years can in no case operate as res judicata in a subsequent contested claim. It depends largely on the terms of the pleadings and the decision in the previous suit. If expressly or by necessary implication the plaintiff's recurring right was affirmed or negatived so as to make such recurring right a matter directly and substantially in issue the decision will operate as res judicata even though the causes of action in the two suits may be different. A plea in bar of legal rights should be given effect to only on strict construction of the pleadings and the decision in the previous suit. The previous ex-parte decree in question in the case before me does not lead to the conclusion that the plaintiff's recurring right to receive interest was expressly or by necessary implication directly and substantially in issue or that it was finally heard and decided. The decree of the lower appellate Court is modified so as to disallow the plaintiff's claim to interest. It is maintained in all other respects. Under the circumstances of the case parties are directed to pay their own costs of this appeal.