George Knox and Muhammad Rafiq, JJ.
1. It appears that one Ram Phal Man Tiwari executed a deed of mortgage in favour of Guptar Pande and Ajudhia Pande on the 20th of September, 1890. Ram Phal Man executed another mortgage subsequently in 1892 in respect of the same property in favour of Ram Saran. In 1897 Ram Saran brought a suit on the basis of the mortgage of 1892 for the recovery of the mortgage money by sale of the hypothecated property. The suit was brought against Ram Phal Man mortgagor and against Ajudhia Pande and some of the legal representatives of Guptar Pande, who had died prior to the institution of the suit. Some other subsequent transferees were also impleaded in the case as defendants. Ram Saran prayed for the relief, among others, that he should be allowed to redeem the prior mortgage of 1890 in favour of Guptar Pande and Ajudhia Pande. The mortgagor and the prior mortgagees did not defend the suit or put in any appearance in court. The court trying the case of Ram Saran framed two issues only which related to the execution and registration of the mortgage deed of 1892 by Ram Phal Man. A decree was passed in favour of Ram Saran for the amount of the mortgage money, which was to be realized by sale of the hypothecated property. The decree did not declare any charge of the prior mortgage on the property to be sold in execution of the decree of Ram Saran. In execution of the latter decree Inayat-ullah Chaudhri became the purchaser of the property sold.
2. On the 2nd of August, 1910, Ajudhia Pande and the legal representatives of Guptar Pande deceased instituted a suit in the court of the Subordinate Judge of Gorakhpur to recover the mortgage money due on the mortgage of the 2nd of September, 1890. The claim was brought against the legal representatives of the original mortgagor, Inayat-ullah Chaudhri, the auction purchaser, and some subsequent transferees. The claim was resisted on the ground, among others, that it was barred by res judicata, inasmuch as the prior mortgagees being defendants in the suit of Ram Saran failed to prove the amount of their debt, in consequence of which the relief of Ram Saran regarding the redemption of the prior mortgage could not be allowed.
3. The court of first instance did not accept this defence and decreed the claim. On appeal the learned Additional Judge of Gorakhpur accepted the plea of res judicata and reversed the decree of the first court and dismissed the claim of the prior mortgagees. The learned Judge came to the conclusion that the plea of res judicata barred the claim of the plaintiffs appellants on the authority of the cases: Sri Gopal v. Pirthi Singh (1902) I.L.R., 24 All., 429, Nattu Krishnama Chariar v. Annangara Chariar (1907) I.L.R., 30 Mad., 353 and Gopal Lal v. Benarasi Pershad Chowdhry (1904) I.L.R., 31 Calc., 428.
4. The case has been argued before us fully and at some length by the learned Counsel for both sides and some additional authorities have been cited before us. The cases referred to by the learned Additional Judge and some other cases on the same point go to show that if a prior mortgagee is a defendant in the suit brought by the subsequent mortgagee in which the debt of the prior mortgagee i.e., the debt prior to the debt in suit is not mentioned and the prior mortgagee omits to set up his claim on his prior mortgage, a subsequent suit Would be barred under Section 11 of the Code of Civil Procedure. These cases are no authority for holding that the plea of res judicata applies to the present case. In the case before us the debt of the prior mortgagee was admitted by Ram Saran in his plaint, and in fact he offered to redeem that debt. There was no occasion for the prior mortgagees to come to court and to bring to its notice their prior debt. In fact in two cases, namely, Srinivasa Rao Saheb v. Yamunabhai Ammall (1905) I.L.R., 29 Mad., 84 and Katchalai Mudali v. Kuppanna Mudali (5) M.W.N. (1912), p. 41, it has been held that under such circumstances the plea of res judicata does not apply. We are therefore of opinion that the claim of the plaintiffs appellants is not barred by Section 11 of the Code of Civil Procedure. We accept the appeal, set aside the decree of the lower appellate court and remand the case to that court for determination according to law. The appellants will get their costs in this Court. Other costs will follow the event.