H. R. KRISHNAN, J.

( 1 ) THIS is a second appeal by the mortgagor defendant from the concurrent decisions in a suit by the mortgagee plaintiff for repayment of the principal and of interest on a mortgage, and on failure for sale of the mortgaged property.

( 2 ) THE points for decision are the following:

(i) Whether the suit is incompetent under Order 2 Rule 2, the same mortgagee having filed and obtained a decree in a suit based on a second mortgage on the same property? In this regard the controversy centres round whether by the recitals in the second deed that mortgage and the earlier one had been consolidated into a single cause of action.

(ii) Whether, not having pleaded in the trial court or in the memorandum of first appeal that the plaintiff-mortgagee was barred under Section 67a indian Transfer of Property Act (Section 74 of the Gwalior Transfer of property Act) from bringing the present suit, it was open to the mortgagor-defendant to raise it during arguments in the first appellate court and again in the present court in second appeal.

(iii) Whether Section 67a does actually debar the plaintiff from bringing the present suit, the defendant having in the earlier suit on the

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