Karamat Husain and Tudball, JJ.
1. The facts of the case out of which this appeal has arisen are as follows:--On the 20th of June, 1885, Husain Ali and Jawwad Husain mortgaged 6 bighas, 1 biswa and 18 dhurs of zamindari to Radhe and Chirkil.
2. On the 19th of January, 1889, Husain Ali sold 3 bighas, 19 dhurs out of the same to Abid and Shafi, a part of the sale consideration being left with the vendees to pay off the mortgage (which they failed to do).
3. On the same date, Abid and Shafi and their two brothers, Nadir and Yusuf, mortgaged several properties to Mahadeo Prasad. Among these was the 3 bighas, 19 dhurs, zamindari purchased by Abid and Shafi alone. On the 4th of January, 1890, Radhe and Ohirkil sold their mortgagee rights under the deed of the 20th of June, 1885, to Nadir. In 1897, Mahadeo Prasad brought a suit for sale on his mortgage. Nadir was then dead and in his place Ashraf and Musharraf, his sons, were impleaded as his heirs.
4. An examination of the plaint shows that Mahadeo Prasad, among other reliefs, asked for sale of the 3 bighas, 19 dhurs zamindari in default of payment. He did not seek to sell it subject to the prior mortgage. He sought the sale of the property, plain and simple, and made no mention of the prior mortgage. Ashraf and Musharraf, though they were parties to the suit, did not put forward their prior mortgage and did not claim either to have their mortgage redeemed or to have the property sold subject to that mortgage.
5. Mahadeo Prasad's suit was decreed, and this property was sold and purchased by the decree-holder. It was not sold subject to the mortgage. On the 15th of October, 1909, Ashraf and Musharraf sold their rights as mortgagees to Gajadhar Teli, who therefore brought the present suit for sale of the 6 bighas, 1 biswa, 12 dhurs, which were mortgaged under the deed of 1885. Mahadeo Prasad being dead, his heirs, Musammat Bhagwanta and Musammat Basanta, have been impleaded as the purchasers of the 3 bighas, 19 dhurs. Among other defences, they pleaded that the claim of the mortgagee for the sale of this 3 bighas, 19 dhurs, was barred by the rule of res judicata. They urged that as Ashraf and Musharraf were parties to the suit by Mahadeo Prasad, they might and ought to have put forward the mortgage of 1885 in defence of Mahadeo Prasad's chaim for sale of the property in question, and that having failed to do so, they or their transferee cannot now enforce the mortgage against that property.
6. The court of first instance held against them on the ground that the heirs of Nadir Ali were only impleaded in Mahadeo Prasad's suit as mortgagors and not also as prior mortgagees.
7. The two ladies appealed and the lower appellate court held in their favour and dismissed the suit as against them and the 3 bighas, 19 dhurs.
8. The plaintiff comes here on second appeal and urges that the decision of the first court was correct. The question is, whether the heirs of Nadir Ali in the suit of Mahadeo Prasad not only might but also ought to have put forward their prior mortgage in defence to the claim of Mahadeo Prasad to put the property to sale in satisfaction of his debt. As we have already pointed out, Mahadeo Prasad did not admit the prior mortgage and seek to sell the property subject thereto.
9. A prior mortgagee, no doubt, is not a necessary party to a suit, wherein a puisne mortgagee seeks to sell the property subject to the prior mortgage, but in the present case, though the prior mortgagee was impleaded as a mortgagor of other properties, he was actually a party to the suit and was aware of the fact that the mortgagee, Mahadeo Prasad, was seeking to sell the property without the burden of the prior mortgage upon it.
10. In our opinion, in these circumstances, they ought to have put forward their prior mortgage in defence of the claim.
11. A large number of rulings have been called to our attention. The majority do not assist us. The principle, however, to be found in the decision of their Lordships of the Privy Council in Mahomed Ibrahim Hossain Khan v. Ambika Pershad Singh (1912) I.L.R. 39 Calc. 527 is clearly applicable.
12. In that case a mortgagee was made a defendant to a suit on a mortgage prior to his own. He omitted to set up his rights under his mortgage and also under another which was prior to the one sued on and which he had paid off.
13. It was held that a suit subsequently brought by him to enforce those rights was barred under the Code of Civil Procedure (Act XIV of 1882, Section 13, Expl. II). The case of Surji Ram Marwari v. Barhamdeo Persad (1905) 1 C.L.J. 337 is distinguishable. The judgment of Mookerjee, J., at the bottom of page 349 runs as follows:--The appellants, in that suit sought not to redeem any prior encumbrances but merely to sell the property subject to all prior charges.'
14. In the case before us, Mahadeo Prasad did not in his suit seek to sell the property subject to any prior charges. It is true that the heirs of Nadir Ali were impleaded as mortgagors under the deed of Mahadeo Prasad but they were parties to the suit. Admittedly, they might have pleaded their prior mortgage in defence, and, in our opinion, when they saw that Mahadeo Prasad was seeking to sell this property without regard to the prior mortgage, they ought to have pleaded their rights under the deed of 1885. Not having done so, the present suit is barred under the terms of Section 11, Civil Procedure Code.
15. The appeal, therefore, fails and is dismissed with costs.