COURT OF APPEAL (1) 2 May 1901 MM. Bond (Pres.); de Hults, Youssef Chawki Bey (JJ.). EL SHEIKH SELIM MATAR EL BISHRI AND OTHERS v. YACOUB PASHA HASSAN (I. C. C. Art. 232. — II. C. C. Art. 232). I. Res judicata—Judgment on exception—Judgment on merits. II. Res judicata—Operative part of judgment—Decision by implication—Motives. I. A judgment given upon an exception raised in the course of the hearing has the effect of res judicata, in the same way as a judgment upon the merits of the case. II. Although the operative part of a judgment can alone have the binding force of res judicata (2), such binding force attaches to everything therein decided, whether expressly or by implication (3): and it is permissible to refer to the motives in order to determine the true meaning and scope of the operative part of the judgment. (1) The following are the facts of the case:— A, claiming to be Nazir of a Wakf, brings an action against B for an account of the income of the Wakf. B brings in as his warrantor X, who had appointed him Wakeel. X, having been joined as a party, pleads that A is not Nazir and claims to be himself the sole Nazir of the Wakf. Before the Court of Appeal, A raises the exception that the Court has no jurisdiction, in virtue of Art. 16 O.D.—By a judgment of 20 January 1893 the Court of Appeal dismisses this exception, declares that it has jurisdiction, and orders a verification of documents—After the completion of such verification, the Court of Appeal, on 28 March 1899, gives judgment upon the question of the Nazirah—The operative part of this judgment contains only a declaration that A has no locus standi, but the motives state in express terms that X is Nazir. In virtue of this judgment X brings an action against A for recovery of the income of the Wakf. A again claims that he is in reality Nazir, and alleges that the decision of the Court of Appeal of 28 March 1899, which declared that he had no locus standi as Nazir, was ultra vires of the Court, since it had no jurisdiction in the matter (Art. 16 O.D.). A contends that it is open to him thus to set up afresh the exception of want of jurisdiction, on the ground that the parties to the present suit and the cause of action are alike different from those in the case in which the judgment of 20 January 1893 upon the question of jurisdiction was given. A further pleads that he has in the meantime commenced proceedings before the Supreme Mehkemeh of Cairo to obtain a declaration that he is Nazir of the Wakf, and that consequently there is now lis pendens. The Tribunal of First Instance, by judgment of 15 October 1899, dismisses all these pleas as being contrary to the principle of res judicata—On appeal brought by A, the judgment of the Court of Appeal, above summarized, was delivered. (2) Cf. App. 13 April 1899 (El Cada VI, 330). (3) Cf. App. 7 June 1898 (El Cada V, 356).