Judgement

Appeal from a judgment and decree of the High Court (May 24, 1915) affirming a decree of the additional Subordinate Judge of Mozufferpur (October 19, 1909).

The suit was instituted by the appellant in 1907 against numerous defendants, including the present respondents, for a sale decree under a mortgage dated May 13, 1892, of which he was the assignee. The substantial question for determination was whether with regard to two villages named Pandharia and Gamharia, in the possession of respondents referred to as the Sahus, the appellant was estopped by a mortgage decree dated August 6, 1906, in Suit No. 100 of 1906. The facts appear from the judgment of their Lordships.

The High Court (Fletcher and Richardson JJ.), affirming the decision of the Subordinate Judge, held that the appellant was estopped under s. 11 of the Code of Civil Procedure, 1908, by the decree made in Suit No. 100 of 1906.

1919. Oct. 31; Nov. 3. Dunne K.C. and E. B. Raikes for the appellant. The appellant is not estopped by the decree in Suit No. 100 of 1906 from setting up and enforcing against the villages Pandharia and Gamharia the mortgage of April 28, 1894. The appellants assignor was joined in that suit as a prior mortgagee, which was an admission that his mortgage was valid, and his title was not attacked in the proceedings. There was no reason why he should appear since under s. 96 of the Transfer of Property Act the property could not be sold free from his mortgage without his consent. Though under s. 85 of that Act puisne mortgagees are necessary parties to a suit for a sale, prior mortgagees are not. Gopal Lal v. Benarasi (( 1904) I. L. R. 31 C. 428.) is distinguishable. In that suit a puisne mortgagee prayed for a sale free from incumbrances and made the prior mortgagee a party ; he did not appear, and a sale was decreed and took place. Gopal v. Pirthi Singh (( 1902) L. R. 29 I. A. 118.) is also distinguishable, since in that case an issue was raised whether there were prior incumbrances to be redeemed. Ajudhia Pandi v. Inayat-Ullah (( 1912) I. L. R. 35 A. 111.) was rightly decided and applies to the facts in this case. The effect of Mahomed Ibrahim Hossein Khan v. Ambika (( 1912) L. R. 39 I. A. 68.) is that if a party is joined as a puisne mortgagee and fails to set up an equitable right giving him a priority, he cannot set up that right in a subsequent suit. The decision does not affect this case. The judgment further shows inferentially that under the Act of 1882 a prior mortgagee was not a necessary party to a suit for sale by a puisne mortgagee. Under the Code of Civil Procedure, 1908, it is expressly so provided. [Reference was also made to Ghose on Mortgages,

p. 681.]

Sir William Garth K.C. and Dube for the respondents. The prior mortgagee, having been a party to Suit No. 100 of 1906, the decree in that suit is a res judicata against the appellant under explanations

IV. and VI. of s. 11 of the Code of Civil Procedure, 1908. The prior mortgage was a ground of defence which the appellants predecessor in title might have raised. Under s. 85 of the Transfer of Property Act, 1882, the prior mortgagee was a necessary party to that suit, the object of the section being that all persons interested in the mortgaged property should be before the Court, so that the decree might provide for all rights in it. It was incumbent upon the prior mortgagee in that suit to prove his mortgage ; s. 96 does not show that that was not so. The decisions in Mahomed Ibrahim Hossein Khan v. Ambika (L. R. 39 I. A. 68.) and Gajadhar Teli v. Bhagwanta (( 1912) I. L.

R. 34 A. 599.) are conclusive in favour of the Sahu respondents. The plaint in the former suit cannot have admitted the prior mortgage or the decree would have been in a different form. If necessary the matter should be remitted to ascertain the contents of the plaint.

Dunne K.C. in reply referred to Mohiruddin Mondal v. Indra Kumari (( 1914) 18 Cal. W. N. 1013.) and Krishna Doyal Gir v. Amirul Hassa