(Babu) Lal Bihari Singh and others vs (Babu) Gur Prasad Singh and others

Kulwant Sahay, J.—This is an appeal by the plaintiffs against a decree of the Subordinate Judge of Monghyr dismissing their suit to enforce a mortgage bond. The bond is dated the 1st November, 1903 and it was executed by the defendants Nos. 1 and 2 and one Hargobind Prasad Singh father of the defendants Nos. 5 and 6 in favour of Amrit Singh and Uzir Singh whose heirs and representatives the plaintiffs are, for a sum of Rs. 2,000. The property mortgaged therein was a 2 annas 7 dams 10 cowries 11 bouris share of village Asthawan. Defendants 3 to 6 are the members of the family of defendants 1 and 2 and defendants 7 to 15 are alleged to be subsequent purchasers or mortgagees. The suit was contested by the defendant No. 11 and by the guardian ad-litem of defendant No. 6. The other defendants did not appear. We are in this appeal concerned only with the defendant No. 11 who raised various pleas in bar of the suit, the principal pleas being that the suit was barred by res judicata and that the suit was bad for non-joinder of parties. The learned Subordinate Judge has dismissed the suit holding that it was barred by res judicata and that it was bad for nonjoinder of parties. Three points have been taken by the learned Vakil for the plaintiffs-appellants; First, that the Court below was wrong in holding that the suit was barred by res judicata; second, that it was wrong in holding that the suit was bad for non-joinder of parties; and thirdly, the Court below was wrong in dismissing the whole suit, whereas it ought in any event to have passed a decree for sale of the share of the mortgaged properties not covered by the mortgage of the defendant No. 11.

The first point of res judicata arises under the following circumstances: It appears that Babu Bihari Lal a cousin of defendant No. 11 had a mortgage dated the 26th January, 1908 over 1 anna 8 dams 10 cowris of Mauza Asthawan executed in his favour by the predecessors of defendants Nos. 1 and 2 for a sum of Rs. 9,625. After the death of Babu Bihari Lal, the defendant No. 11 brought a suit on the said mortgage. That was suit No. 78 of 1914 and a certified copy of the plaint of that suit has been produced and marked as Ex.5 in this case. Tn that suit Amrit Singh and Kamta Prasad Singh, who are plaintiffs Nos. 1 and 7 in the present action, were impleaded as defendants and in the plaint it was alleged that they were subsequent mortgagees inasmuch as the plaintiff''s (the present defendant No. 11) mortgage was executed to satisfy a prior mortgage of the year 1895 and therefore he acquired a priority over mortgage of the present plaintiffs. Kamta Prasad Singh did not appear in that suit, but Amrit Singh filed a written statement which is marked Ex. 4 in this case and in that written statement Amrit Singh alleged that his mortgage was prior to the mortgage of defendant No. 11 and the latter could claim no priority over him. After filing this written statement Amrit Singh or Kamta Prasad Singh never appeared in this suit and never took any steps to prove their priority over the mortgage of the defendant No. 11. The learned Subordinate Judge, who decided that suit, in his judgment dated the 5th May 1916, which is marked Ex. 7 in this case, proceeded on the assumption that Amrit Singh and Kamta Prasad Singh were subsequent mortgagees and the decree in that suit which is marked Ex. 6 in this case, directed "That the defendants do pay the decretal amount within four months and that in case of default the same be realized by sale of the mortgaged property." Thereafter Amrit Singh filed a petition on the 20th July 1916 for a rehearing of the suit under O. 9, R. 13, C.P.C. but this application was also dismissed. Therefore the position was that in the suit No. 78 of 1914 the defendant No. 11 clearly alleged that his mortgage was prior to that of the present plaintiffs and the decree in that suit directed the sale of the property in the event of the defendants in that suit, including the plaintiffs in the present suit, failing to pay up the decretal amount. The decree was executed in due course and the mortgage property 1 anna, 8 dams, 10 cowris in Asthawan was sold and purchased by the defendant No. 11. The plaintiffs in the present suit contend that as their mortgage was in fact prior to that of the defendant No. 11, they were not necessary parties in the suit of the defendant No. 11 and that it was not necessary for them to prove their priority in that suit and therefore the decree passed in that suit does not operate as res judicata in the present suit. This contention cannot be sustained. It may be that as a matter of fact the plaintiffs'' mortgage was prior in time to that of the defendant No. 11. It is very likely that the allegation of the defendant No. 11 in his plaint of the suit of 1914 that he was entitled to priority on account of the money advanced under his bond being used in satisfying a prior debt, was false. But it was on the allegation, true or false, that the plaintiffs in the present action had a subsequent mortgage that they were impleaded as parties in that suit. It was their duty in that suit to prove that that allegation was incorrect. The mere filing of the written statement in that suit was not sufficient. It was no proof of priority but a mere allegation of priority, and once their mortgage was attacked as being subsequent to that of the defendant No. 11, it was their bounden duty to prove that it was not so. Having failed to appear and prove their priority in the suit of 1914, the plaintiffs in my opinion are now estopped from claiming their priority in the present suit. Reliance has been placed by the learned Vakil for the appellants on the case of Lachmi Narain Marwari v. Ghaudhri Bhagwat Singh, (1920) 1 P.L.T. 629: 08 I.C. 33 but in that case it does not appear that in the suit of the subsequent mortgagee wherein the prior mortgagee was made a party there was any allegation disputing his priority and from the report of the judgment of that case it does not appear what was the form of the decree passed in that case. As a matter of fact from the extract of the judgment of the Deputy Commissioner Subordinate Judge given in the report of that case it appears that the question of priority was left open. In any event Mr. Justice Sultan Ahmad in that case clearly says "At the same time the puisne mortgagee may make a prior mortgagee a party to the suit. If he does so, the purpose of making a prior mortgagee party should be clearly stated; but, if no purpose is given in the plaint or provided for in the decree, the prior mortgage will not be affected by the judgment in any way. Where no relief is claimed, the subject matter of the action is the interest of the mortgagor minus the interest of the first mortgagee, and in such a suit, in my opinion no investigation as to the validity or extent of the prior mortgage can possibly be made." In the case now before us the purpose of making the present plaintiffs a party in the suit of defendant No. 11 was clearly stated and the decree clearly directed the present plaintiffs to pay up the decree and in the event of their failure, a sale of the mortgage property was ordered. This case therefore does not help the appellants. Mr. Sushil Madhab Mullick, for the appellants, also relies upon the case of Radha Kishun v. Khurshed Hossein, (1920) 47 Cal. 062: 47 I.A. 11: 38 M.L.J. 424: (1920) M.W.N. 308: 11 L.W. 518: 22 Bom. L.R. 557: 18 A.L.J. 401: 55 I.C. 959 (P.C.) That case far from supporting the plaintiffs is an authority in favour of the proposition that where a prior mortgagee is impleaded as a defendant in an action on a subsequent mortgage and it is sought to displace the prior title and to postpone it to the title of the plaintiff it is the duty of the prior mortgagee to prove his prior mortgage. In that case the ''prior mortgagee was joined as a defendant, but it did not appear whether any and what relief was sought against him. The plaint of the prior suit, was not produced and their Lordships held that in the absence of any proof as to the allegation upon which the prior mortgagee was made a party it must be assumed that he was made a party as a prior mortgagee and the case came within the terms of S. 96 of the Transfer of Property Act. Sir Lawrence Jenkins in delivering the judgment observed as follows: "Consequently to sustain the plea of res judicata it is incumbent on the Sahus in the circumstances of this case to show that they sought in the former suit to displace Bukhtaur Mull''s prior title and postpone it to their own. For this it would have been necessary for the Sahus as plaintiffs in the former suit to allege a distinct case in their plaint in derogation of Bukhtaur Mull''s "priority". In the present case, the defendant No. 11 in the former suit did allege a distinct case in the plaint in derogation of the present plaintiffs'' priority. Therefore this case supports the view taken by me and it does not help the plaintiff''s appellants. In this connection reference may be made to the case of 16 CWN 505 (Privy Council) where their Lordships of the Judicial Committee of the Privy Council in dealing with a case similar to the present case held that it was incumbent on the prior mortgagee to set up his rights under the prior mortgage and not having done so, S. 13, Expl. 2 of the Code of Civil Procedure, 1882 applied and that the claim of the plaintiff''s was barred. Reference may also be made in this connection to the case of 6 CWN 889 (Privy Council) where a similar view was taken. I therefore agree with the Subordinate Judge in holding that the present suit in so far as it relates to 1 anna, 8 dams, 10 cowris of Asthawan is barred by res judicata.

As regards the second point taken by the learned Vakil for the appellant, it appears that Gopal Saran, the defendant No. 3 has a minor son named Chinta Saran who has not been made a party in this suit. The learned Subordinate Judge has held that the whole suit is bad inasmuch as Chinta Saran is a necessary party and that on account of this defect the whole suit ought to be dismissed. The learned counsel for the respondent does not support this part of the judgment and in my opinion, having regard to the circumstances of the case, it can safely be held that Gopal Saran represents the interests of his son and that the suit ought not to fail on his ground.

As regards the third point, as I have already stated the property mortgaged in the bond of the plaintiffs was a 2 annas, 17 dams, 15 cowris, 11 bouris share of the village Asthawan and only one anna, eight dams, ten cowris was mortgaged in the bond of the defendant No. 11 and purchased by him. There is no reason why the plaintiff''s should not get a mortgage decree for the sale of the remaining share of 1 anna, 9 dams, 5 cowris, 11 bouris of Asthawan.

The result therefore is that the decree of the Court below will be modified and an ordinary mortgage decree will be passed in favour of the plaintiffs for the sum that may be found due on an account being taken for principal and interest at the bond rate up to the date of decree and for four months thereafter. The defendants other than the defendant No. 11 must pay up the amount within four months from this date, failing therein 1 anna, 9 dams, 5 cowris, 11 bouris share of mauza Asthawan will be sold for realization thereof. The prinoipal amount is to carry interest at the bond rate up to the date of decree and for four months thereafter and after that the entire amount will carry interest at 6 percent per annum. The defendant No.11 (respondent) is entitled to the costs of this appeal.

Das, J.

I agree.