1. Inasmuch as the substantial point taken in this appeal is the effect on the present suit of certain previous litigation, it may be convenient to begin at once with a statement of the facts regarding the said previous litigation, namely, a suit registered as number 65 of 1914 in the Court of the Subordinate Judge of Saharanpur. That suit was brought by one Radhe Lal on the basis of a simple mortgage of the 8th of February 1908. The principal defendants in that suit were one of the original mortgagors and the successors-in-interest of the other two, and the relief sought was a decree for sale. In the plaint, however, certain other defendants were also impleaded, namely, the heirs of one Sant Lal. In respect of these additional defendants it was alleged that they held one mortgage subsequent to that of the 8th of February 1908, on which Radhe Lal was suing, and also that they were in possession of the mortgaged property or part of it under two usufructuary mortgages prior in date to that of Radhe Lal, namely, one of the 1st of January 1888 and another of the 13th of March 1900. These prior mortgages Radhe Lal did not offer to redeem. He prayed that the property might be brought to sale subject to the said mortgages. Those defendants who represented the original mortgagors not only contested their liability under Radhe Lal's mortgage, but they expressly pleaded that no liability attached to them in respect of the two mortgages of January the 1st, 1888, and March the 13th, 1900. 'They denied that the heirs of Sant Lal were actually in possession under those mortgages. They denied that those mortgage deeds had been validly executed, or that consideration had passed, or that in any event they, as sons and grandsons of two of the original mortgagors, were bound by their terms. The questions thus raised were expressly put in issue and were fully tried out in the aforesaid suit No. 65 of 1914. On every point the finding was in favour of the validity and binding character of the two mortgages of 1888 and 1900. It was even found that the mortgagees were in actual possession of the property concerned in these two deads, In the decree which followed it was not only ordered that the property should be sold subject to these two mortgages of 1888 and 1900, but that the costs of those defendants who represented the heirs of Sant Lal should be borne by those defendants who represented the original mortgagors. Having been defeated in this litigation, the representatives of the original mortgagors have come into Court with a suit which, 1 must say, strikes me as one of the most extraordinary that I have ever seen. They repeated their allegations that the two documents, as they called them, dated the 1st of January 1888 and the 13th of March 1900 were not validly executed and for other reasons as well were not binding upon them. They care-fully suppressed the fact that the mortgages in question were in their terms usufructuary and that it had been found in the previous litigation that the mortgagees were in possession in accordance with the terms of the deeds. They threw out a suggestion, which it is clear that they made no attempt to support, that Radhe Lal as plaintiff in the former suit had been in some way in collusion with the heirs of Sant Lal in their capacity of prior mortgagees. They admitted that they had filed an appeal against the decision in Suit No. 65 of 1914 bat that this appeal had been dismissed owing to failure on their part to deposit the necessary Court-fees. They have got round the Court-fee difficulty at any rate by bringing the present suit as one for a mere declaration. The declaration they ask for is that the documents dated the 1st of January 1888 and the 13th of March 1900 are not binding upon the plaintiffs and that the plaintiffs' share in the property 'hypothecated,' as they put it, under the said bonds cannot be sold by auction in execution of the decree of Radhe Lal in Suit. No. 65 of 1914. They ask for this last relief without even impleading Radhe Lal as a defendant. They get round all difficulties on the subject of limitation by suggesting that a person asking relief under Section 39 of the Specific Relief Act can create a new starting point of limitation for himself, whenever he pleases, by asking the person in whose favour the written instrument in question appears to operate according to its terms to rescind the same. The written statement filed in reply to this remarkable plaint is not very satisfactory. The main allegations set forth in the plaint were denied and it was pleaded that the plaintiffs had no cause of action in respect of either of the reliefs sought by them. The question of the usufructuary nature of the mortgages and the consequent right of the plaintiffs to claim further relief, beyond a mere declaration, were not raised. The defendants in the main contented themselves with the allegation that all the questions raised by this plaint had already been tried out between the parties in Suit No. 65 of 1914 and decided in favour of the present defendants and against the present plaintiffs. The Court below, as a matter of fact, has disposed of the suit on this ground alone and the appeal before us is against that decision.
2. I have thought it worth while to call attention to the curious nature of the suit and the objections to which it is liable upon other grounds, but, as a matter of fact, I see no reason to dissent from the decision of the Court below on the one question tried out by it. The learned Subordinate Judge has been content to base his decision on the rulings in Chajju v. Umrao Singh 22 A. 386 : A.W.N. (1900) 120 : 9 Ind. Dec (N.S.) 1293 and Magniram v. Mehdi Hossein Khan 31 C. 95 : 8 C.W.N. 30. Both these decisions are in point and are sufficient authority for the view taken by the Court below. In argument on behalf of the appellants we have been asked more particularly to consider the decision in Surjiram v. Barhamdeo Persad 1 C.L.J. 337. That case turned upon the question whether, upon a certain set of facts, the doctrine of constructive res judicata embodied in Explanation 4 to Section 11 of the present Code of Civil Procedure could be applied as between the parties to that litigation. There is no question of any constructive res judicata in the present case. The precise questions sought to be raised by the present suit, were raised in Suit No. 65 of 1914, were pressed upon the Court by the pleadings of the present plaintiffs and were fully tried out upon evidence. Nor am I at all prepared to hold, with reference to the principle laid down in Chajju v. Umrao Singh 22 A. 386 : A.W.N. (1900) 120 : 9 Ind. Dec (N.S.) 1293, that the determination of these questions in Suit No. 65 of 1914 was not necessary in order to give an appropriate relief to the then plaintiff, Radhe Lal. If the present plaintiffs had succeeded in the case, and the property had been ordered to be sold free from the mortgages of 188S and 1900, the result would have been very greatly in favour of the present plaintiffs. So far as Radhe Lal was concerned, the actual result of the suit was to limit and specify the precise property against which his mortgage charge was to be enforced. He was not bound to implead the heirs of Sant Lal in their capacity of prior mortgagees, but there was nothing in the law to prevent him from doing so. On the pleadings, he had a cause of action against them on the strength of a mortgage subsequent to the date of his own, as well as in respect of two prior mortgages. The decree which he asked the Court to give him was one for sale against the property hypothecated to him, subject to the rights of the usufructuary mortgagees under the deeds of 1888 and 1800, The result of the litigation, so far as he was concerned, was that he obtained an order for the sale of the property subject to certain defined and judicially ascertained charges, instead of an order, which he might no doubt have asked for, for the sale of the property subject to the rights of the heirs of Sant Lal, whatever those rights might hereafter be found to be. On all these grounds I think there is no fores in this appeal and 1 would dismiss it with costs.
3. I agree I think no question of law arises. The whole argument was based on a contention which is applicable, in my opinion, only to Explanation 4 and not to this case. It appears conclusively to have been found as a fact that the issue in question was directly and substantially in issue in a former suit between the same parties in a competent Court and was finally heard and dealt with.
4. The order of the Court is that the appeal is dismissed with costs, including fees an the higher scale.