1. The suit out of which this appeal has arisen was brought by the plaintiff-appellant for sale upon a mortgage dated the 3rd of October 1901, executed by the defendant Har Narain; Two villages were comprised in this mortgage. In June 1899, the same villages had been mortgaged by Har Narain to Jagan Nath and in February 1900, he made another mortgage of the same property in favour of Ram Sanehi. Jagan Nath brought a suit upon his mortgage making Ram Sanehi and the plaintiff parties to it and obtained a decree and an order absolute for sale and caused one of the mortgaged villages to be sold by auction. This village was purchased by the plaintiff. Ram Sanehi also brought a suit upon his mortgage and obtained a decree for sale on the 31st May 1904. The plaintiff was a party to that suit. There is nothing to show that an order absolute for sale was obtained by Ram Sanehi and it is not the defendant's case that a sale has taken place in execution of that decree. The plaintiff now seeks to sell one of the mortgaged villages, namely, the one which has not been purchased by him, and his plaint contains a prayer in the alternative to the effect that he should be allowed to redeem Ram Sanehi's mortgage. The Court of first instance held that the mortgage, on the basis of which the claim was based, had been executed by Har Narain but it dismissed the suit as barred by Section 13 of Act XIV of 1882. The lower appellate Court has affirmed the decree of the Court of first instance.
2. The question which we have to consider is whether the appeal is barred by the rule of res judicata. We think that the view taken by the Courts below is erroneous. The learned Judge of the lower appellate Court thinks that in the suit of Ram Sanehi, the plaintiff could have set up his own mortgage and obtained the relief which he now seeks. In so holding, he is clearly in error. As Ram Sanehi held a mortgage of a prior date, the plaintiff who was a defendant to that suit, could not have successfully resisted his claim by setting up his own subsequent mortgage. The Court of first instance, however, seems to have thought that as the plaintiff who was a party to the decree passed in Ram Sanehi's suit, did not pay the amount of that decree within the time fixed, his right to redeem Ram Sanehi's mortgage has become extinct. This view is, in our opinion, also erroneous. So long as there has been no sale in execution of Ram Sanehi's mortgage, the defendants to the suit in which a decree in favour of Ram Sanehi was passed have still the right to prevent a sale of the property mortgaged to him by paying off the amount of the decree. The plaintiff is, therefore, still entitled to redeem Ram Sanehi's mortgage and he can claim in the present suit, as he has done, to redeem that mortgage and to sell the property mortgaged to him for the realisation of the amount of his own mortgage after having discharged the mortgage of Ram Sanehi. He could also be entitled to sell, for the realisation of the amount of his mortgage, the property mortgaged to him, subject to the prior mortgage in favour of Ram Sanehi. But once a sale takes place in execution of Ram Sanehi's mortgage, the property cannot be sold again. As we have said above, it is not the case of either party that the property has already been sold in execution of Ram Sanehi's decree and we may assume that no sale has yet taken place. Therefore, the ground upon which the Courts below have dismissed the plaintiff's suit is untenable, and if the other points raised by the defence of the defendants be decided in the plaintiff's favour, he would be entitled to a decree for sale subject to the condition that he pays off Ram Sanehi's mortgage, in which case he would be entitled to add the amount of that mortgage to the sum due on his own mortgage or he may obtain a decree for sale subject to that mortgage. There are other questions in the case raised by the defence which have not been determined by either of the Courts below and it seems to us that all the necessary issues were not framed by the first Court. As the preliminary ground upon which the claim has been dismissed is, in our opinion, erroneous, we set aside the decrees of both the Courts below and remand the case to the Court of first instance under the provisions of Order XLI, Rule 23 of the Code of Civil Procedure with direction to re-admit it under its original number in the register and dispose of it according to law after re-setting the issues. Costs here and hitherto will abide the event. The costs in this Court will include fees on the higher scale.