1. This is a suit to recover the amount due under a deed of hypothecation, dated the 6th September 1884 and for sale of the property hypothecated. Both the Courts below have given decrees for the plaintiff; but in this Court it is contended that the suit should have been dismissed because the matter is (1) Res-judicata within Explanation II of Section 13 of the Civil Procedure Code and (2) because the plaint mortgage has ceased to exist as such having become merged as the plaintiff had become owner as well as mortgagee of the property hypothecated prior to the suit.

2. The facts are as follows:--On the 6th September 1884, the hypothecation bond now sued on was executed to Ranganatha Butt by Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa. Afterwards Ranganatha Davay and two of his sons, Balakrishna and Ramachandra, executed a simple debt bond to one Appasawmy Josier. Appasawmy died and his widows (of whom the present 1st defendant is one) brought Small Cause Suit No. 775 of 1886 against Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa under the bond and got a decree against Ranganatha Davay and his two sons Bala-krishna