1. This is a plaintiff's appeal arising out of a suit instituted by him under the following circumstances:
2. One Achhuta Nand executed a mortgage-deed in 1905 in favour of Bhagwant and. Bindeshri. Subsequently, on 29th June 1908, he executed another mortgage-deed in respect of the same property in favour of Asghar. The last named mortgagee brought suit No. 81 of 1917 on foot of his mortgage-deed for sale of the mortgaged property, impleading, among others, Bhagwant and Bindeshri the prior mortgagees. Copy of the plaint of that suit has not been produced. It appears from certain recitals in the judgment that these persons together with some others were described in the plaint as subsequent transferees. In the written statement which they filed they appear to have claimed certain priorities. No copy of the written statement has been produced either. The judgment, which is the only document besides the decree, throwing light on the pleadings of that case, makes vague references to the pleas put forward by the prior mortgagees and to the decision given by the Court on their pleas. It mentions that
defendants 32, 34, 36 and 37 allege that they have priorities against the plaintiffs.
3. Bindeshri was defendant 32 in that case. It does not clearly appear whether Bhagwant was a party at all. He does not, at any rate, appear to have filed a written statement. We must, therefore, take it that the question of priority was raised by Bindeshri alone. The Court framed issue 8 with reference to the rights claimed by defendants 32, 34, 36 and 37. It ran thus:
Have defendants 82, 34, 36 and 37 any priority against the plaintiffs
4. The finding on this issue is:
Defendants 32, 34, 33 and 37 have given no proof of the priority of their claim. The issue is decided against thorn.
5. The suit was decreed on 30th April 1917, and the mortgaged property was sold in due course and purchased by Partap, the plaintiff-appellant before us, on 20th August l9l9. In the meantime Bindeshri and Bhagwant the prior mortgagees instituted suit No. 890 of 1918 for enforcement of their own mortgage of 1905, impleading Achhuta Nand, the original mortgagor, Asghar, the subsequent mortgagee, and some others. A decree was passed in favour of the plaintiffs on 24th February 1919, which was affirmed on appeal. The mortgaged property was sold on 20th March 1925 and purchased by Bindeshri and Bhagwant, the mortgagees. A conflict thereupon seems to have arisen between Partap, the auction purchaser in suit No. 81 of 1917, and Bindeshri and Bhagwant, the mortgagees, auction purchasers, in suit No. 890 of 1918. The suit out of which the present appeal has arisen was then brought by Partap for a declaration that the decree passed in suit No. 890 of 1918 and the sale held in execution thereof were ineffective as against him. The claim was resisted by Bindeshri and Bhagwant mainly on the ground that, being purchasers in execution of a decree passed on foot of a prior mortgage their title must prevail against that of the plaintiff-appellant, who purchased in execution of a decree passed on foot of a subsequent mortgage. The plaintiff-appellant's rejoinder was that Bindeshri and Bhagwant being parties to suit No. 81 of 1917 and having omitted to disclose the existence of their prior mortgage and having failed to obtain recognition thereof in that suit, their present plea that they purchased in execution of a decree passed on foot of a prior mortgage is barred by res judicata. This contention found favour with the Court of first instance; but the lower appellate Court has held that no question of res judicata can arise in view of two inconsistent decrees last of which should be allowed to prevail. Accordingly it dismissed the plaintiff's suit. The present second appeal has been preferred by him from the decree passed the lower appellate Court.
6. The reasons given by the lower appellate Court in support of its conclusion may not be quite sound. Having examined the pleadings, such as we have before us of suit No. 81 of 1917 and the judgment of the Court in that case, we have no doubt that the plea of res judicata has no force. Under Order 34, E. 1, Civil P.C. a prior mortgagee is not a necessary party to a suit for sale brought by a puisne mortgagee. Whether he is a party or not, his rights are unaffected by any decree which may be passed in enforcement of the puisne mortgage. It is only if he is a party to the suit of the puisne mortgagee and his rights are attacked and are adjudicated on adversely to him with reference to his prior mortgage that a question of res judicata can arise. In Radha Kishan v. Khurshed Hossein A.I.R. 1920 P.C. 81 their Lordships of the Privy Council have held that.
to sustain the plea of res judicata it is incumbent on the Sahus (puisne mortgagees) in the circumstances of this case to show that they sought in the former suit to displace Bakhtaur Mull's prior title and postpone it to their own.
7. The plaintiff-appellant has failed to establish by producing copies of the plaint and the written statement in suit No. 81 of 1917 that the rights of Bindeshri and Bhagwant under the mortgage-deed of 1905 were impugned. Reference to priority mentioned in the judgment does not connect the controversy in that suit to the mortgage of 1905. It is possible that priority in question in that case was under some other document in which defendant 32, Bindeshri, alone was interested, an indication afforded by the circumstance that he alone and not Bhagwant is mentioned in relation to that matter. The judgment does not likewise show that the Court applied its mind to any question in reference to the mortgage of 1905. Under these circumstances, we are of opinion that the plea of res judicata must fail.
8. No other question having been argued before us, this appeal is dismissed with costs.