The judgment established the importance of timely enforcement of acquired rights, the application of the doctrine of res judicata, and the obligation to assert and prove priority in mortgage disputes.

Hemeon, J—Raoji (deceased) and his son Krishna (defendant 1) mortgaged fields, Survey Nos. 140/2 and. 69/1 on 14th July 1923 with Raghunath Gulji Marwari, and on 23rd May 1925, Krishna and his brother Motjram (defendant 2) mortgaged the same two fields and third field Survey No. 111/1 with Ramkjsan (defendant 3).

2. On 22nd December 1925, they sold field No. 69/1 to the plaintiff-appellant Radhakisan (now deceased). Raghunath Gulji Marwari thereafter instituted civil Suit No. 37 of 1928 against the mortgagors, Ramkisan and Radhakisan and on 18th September 1928, obtained a decree for foreclosure. He assigned this decree to Narayan who was substituted as plaintiff in lieu of him in that suit. On 28th September 1929, Radhakisan deposited the full amount of the decree and a final decree for fall satisfaction was drawn up.

3. Ramkisan then instituted civil Suit No. 29 of 1930 to enforce his mortgage against the mortgagors and Radhakisan and, having secured a preliminary and final decree, took possession of the fields, on 5th March 1932. On 29th August 1911, Radhakisan filed the present suit in order to enforce the encumbrance under Raghunath Gulji Marwari's mortgage deed on the ground that he was by his payment of the full amount of that deed subrogated to the mortgagee's position and had a right to foreclose. Pandurang (respondent 4) was joined as a defendant as Ramkisan had sold field Survey No. 140/2 to him.

4. The defendants Krishna and Motiram were proceeded against ex parte and the defendant Pandurang, who admitted his purchase of field Survey No. 140/2, claimed that the suit was time barred in respect of him. The most active contestant was the defendant Bamkisan who admitted the two mortgages and the subsequent sale in the plaintiff's favour but denied that the plaintiff by making payment was substituted for the original mortgagee and asserted that he had no right to recover the amount paid or to foreclose the property.

5. He also contended that he was estopped from pleading subrogation as he had not raised that plea in the mortgage suit filed by him (Ramkisan), that under the sale deed of 22nd December 1925, the right of subrogation was expressly excluded and that the plaintiff had paid the consideration as the mortgagors' agent and acquired the property for less than its value with the burden of the prior mortgages. Ramkisan also claimed that the suit was liable to be dismissed because the plaintiff had not brought a proper suit for contribution and because it was barred by limitation.

6. The trial Court in dismissing the suit found as follows:

(i) The plaintiff was subrogated in place of the decree-holder in civil Suit No. 87 of 1928.

(ii) The present suit was not maintainable without a suit for contribution.

(iii) The plaintiff was estopped from claiming the amount in question as he had not claimed it in Civil Suit No. 29 of 1930.

(iv) The present suit was not tenable without redemption of the decree in civil Suit No. 29 of 1930.

(v) The suit was barred by limitation against the defendant Pandurang.

(vi) The plaintiff was not entitled to the amount including interest claimed by him.

7. In appeal the Additional District Judge, Amraoti, held that the plaintiff should have set up his claim for being redeemed in respect of the mortgagee's rights in civil Suit No. 37 of 1928 and was now estopped from doing so by record and by the principle of res judicata as against Ramkisan. It was also decided that the present suit for foreclosure was not tenable without a suit for contribution and that the plaintiff was not entitled to any relief from the defendant Pandurang. The appeal was accordingly dismissed.

8. In second appeal the plaintiff-appellant's learned Counsel frankly conceded that the plaintiff's claim against Pandurang was rightly held to be time-barred.

9. In civil Suit No. 29 of 1930 instituted by Ramkisan to enforce his mortgage against the mortgagors and Radhakisan, the latter not only Entered an appearance' but, as his writt