JUDGMENT

1. This is the plaintiff's appeal from the decree of the Additional Subordinate Judge of Gonda, dated the 28th March 1927, affirming the decree of the Munsif of the same place, dated the 12th August 1926.

2. In the suit, out of which this appeal arises, the plaintiffs asked for a relief of declaration for a 2/19273rds share in certain plots of land situate in village Baundhar, pargana Ufrala, in the district of Gonda. They also prayed for possession of the same plots in the event it was found that they were not in possession. The Courts below dismissed the suit on the ground that it was barred by the provisions of Section 47, Civil P.C., 1908.;

3. In the lower appellate Court the plaintiffs asked that the plaint in the present suit might be treated as proceedings under Section 47. The Court below has refused the prayer on the ground that proceedings under Section 47 were barred by the rule of res judicata arising out of a previous order, to which reference shall hereafter be made.

4. We are of opinion that there is no bar of res judicata and the plaint in the present suit should have been returned to the plaintiffs for being presented as an application in execution proceedings to to the proper Court.

5. The facts are as follows:

One Bismillah Khan bad a son, Muhammad Khan, and four daughters. Muhammad Khan entered in course of time into, the possession of the entire estate of his father, Bismillah Khan, on the death of the latter. Eventually the three sisters and the representative of the deceased sister brought four suits for the recovery of their shares in the inheritance of their father Bismillah Khan. Naturally Muhammad Khan was the foremost defendant in the suits. But while Muhammad Khan was in possession of the estate he had made several alienations. These alienees were made party defendants to the four suits. They were large in number and amongst them were the present plaintiffs. Muhammad Khan confessed judgment and there was another defendant who compromised with the plaintiffs of those suits. The suits were decreed against Muhammad Khan and the said defendants but they were dismissed against the present plaintiffs and also against other defendants. They were instituted on the 13th July 1915 and the decrees were passed on the 5th August 1918. All this happened in the Court of the Subordinate Judge of Basti in the Province of Agra. The suits and the decrees included certain items of property which were situate in the district of Gonda. In that class of property were included the plots now in question. On the date of the suits mentioned above the plaintiffs of the present suit held a possessory mortgage of the plots in suit dated 16th February 1915, executed by Muhammad Khan. During the pendency of those suits, that is on the 8th March 1916, they had obtained a sale deed of the same property from the same Muhammad Khan.

6. It is agreed that the sale being pendente lite is wholly inoperative against the interests of the decree-holders of those suits; but there is no doubt that the mortgage subsists and the decrees of the four suits mentioned above had not the effect of wiping off the said mortgage for the simple reason that the plaintiffs of those suits were granted no relief against the present plaintiff's. In other words, their suit was dismissed against the latter. The mortgage, therefore, subsists.

7. It appears that execution proceedings were taken by the decree-holders first in the Basti Court and afterwards in the Court at Gondii. We have before us the four applications which were made in the four suits mentioned above in the Court of the Subordinate Judge of Basti for execution (EXH. 24 to 27). There were two distinct reliefs for which prayer was made in those applications. One was for possession of the properties situate within the jurisdiction of the Basti Court. The second was for a certificate of transfer to the Gonda Court for execution proceedings being taken in that Court in respect of the propertie