The principle of res judicata applies to proceedings under Section 33 of the U. P. Agriculturists Relief Act and a decision under that section operates as res judicata even though the court was not competent to try a subsequent suit.

( 1 ) THIS is a mortgagors appeal in a suit for sale on foot of a mortgage deed executed by the mortgagors-defendants in favour of the plaintiffs-mortgagees on the 1st of October, 1928, for a sum of Rs. 15,000.

( 2 ) IN their plaint the mortgagees have set out the particulars of the mortgage and have shown that amount of mortgage money was Rs. 15,000/-, It is alleged in the plaint that out of the mortgage consideration Rs. 11,500, were left for payment to Lala Ramchander, but out of that Rs. 11,500/-only a sum of Rs. 11,346/4/- was paid and Rs. 40/-was spent in the execution and completion of the acquittance. In this way Rs. 11,386/4/- were paid and the amount which was actually paid has been included in the account. The rest of the mortgage consideration, according to the mortgage deed, was made up in such a way that Rs. 1875/- were paid before the sub-Registrar, Rs. 1200/- was in respect of other debts and Rs. 1500/-was taken for redeeming some ornaments which had been pledged.

( 3 ) DEFENCE was entered and the plea was taken that undue advantage was taken of the straitened circumstances of the contesting defendants and they were therefore compelled to agree to usurious conditions. By paragraph 6 of the additional pleas it was pleaded that as the plaintiff had not upto the date of the plaint returned the pawned ornaments to the contesting defendants, rs. 1500/- as well as the price of the ornaments should be set off as against the mortgage money. By paragraph 8 it was pleaded that it was agreed upon between the plaintiffs and the contesting defendants that the plaintiffs would give to the contesting defendants Rs. 1875/- at the time of the registration, but after the registration the contesting defendants would return this money to the plaintiffs as interest for 1 1/4 years and that if the contesting defendants paid the mortgage money this money would be allowed credit for and would be set off as against the interest for 1 1/4 years. It was pleaded that in this way the sum of Rs. 1875/-which had been returned to the plaintiffs should be set off as against the mortgage money. With regard to the amount which was to be paid to Lala Ramchander it was said that a sum of rs. 153/12/- remained with the plaintiffs. It was stated that the contesting defendants had paid rs. 1200/- more on the 15th of March 1935, towards interest to the plaintiffs, the receipt whereof has not been given by the plaintiffs and thus this has not been mentioned in the plaint and that the aforesaid amount should also be allowed credit for. By paragraph 11 it was pleaded that the plaintiffs creditors were carrying on money-lending business and were, neither prepared nor had sent annual accounts to the contesting defendants and were not entitled to get any interest and costs.

( 4 ) UPON these pleadings the learned civil Judge framed the issues. A request was made to him to first determine issues 1 to 5. The learned Civil Judge acceded to that request and by an order dated the 27th of April, 1942, he held that the issues 1 to 4 could not be gone into again as they had already been determined in a previous proceeding inter, partes under Section 33 of the U. P. Agriculturists Relief Act. In those proceedings it had been decided that the consideration entered in the mortgage deed was fully established and that Rs. 23,363/8/- were due on foot of the mortgage deed dated the 1st of October 1928 up to the 28th of November, 1939. In regard to the other issues the findings were given by the order dated 5-8-1936. It was found that the defendants had proved that they were "agriculturists" according to the Debt redemption Act, and that interest should be reduced in terms of that Act. It was also found that the claim of the defendants that interest and costs should be disallowed under Section 34 of the agriculturists Relief Act was not at all tenable; that the plaintiffs were "creditors" within the meaning of the Act had not been established; and that therefore t