Judgement

Appeal from a judgment and decree of the High Court (February 25, 1913) reversing a judgment and decree of the Subordinate Judge of Bareilly (July 8, 1911).

The suit was instituted by one Lala Chatri Lal (since deceased and represented in the appeal by the appellants) against the respondents as representatives of Jai Chand, upon a mortgage executed by the latter on November 13, 1876. The facts appear from the judgment of their Lordships.

The respondents by their written statement submitted, inter alia, (1.) that the mortgage of 1876 was discharged by that of 1887; (2.) that the claim was merged in the decree of the Privy Council in 1903, affirming the decision of the High Court that the mortgage by Nandan in 1887 was not binding upon her, and that the claim was consequently barred under s. 11 and Order n., r. 2 (2.), of the Code of Civil Procedure, 1908. Issues were framed upon these pleas.

The Subordinate Judge decided in favour of the appellants (plaintiffs) and made the usual mortgage decree.

Upon appeal to the High Court (Richards and Bannerjee JJ.) the decision was reversed. The learned judges held that at the time of the suit the mortgagee was neither possessed of n