1. The facts of the case out of which this appeal has arisen are as follows:
2. On 20th June 1885, Hussain Ali and Jawwad Husain mortgaged 6 bighas, 1 biswa, 18 dhurs of zemindari to Radhe and Chirkit. On 19th January 1889, Hussain Ali sold 3 bighas, 19 dhurs dut of the same to Abid and Shaft, 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 Pershad. Among these, was the 8 bighas, 19 dhurs zemindari purchased by Abid and Shaft alone. On 4th January 1890, Radhe and Chirkit sold their mortgagee rights under the deed of 20th June 1885 to Nadir. In 1897, Mahadeo Pershad 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 Pershad, among other reliefs, asked for sale of the 3 bighas, 19 dhurs temindari 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. Mahadeo Pershad's suit was decreed and this property was sold and purchased by the decree-holder. It was not sold subject to the mortgage. On 15th October 1909, Ashraf and Musharraf sold their rights as mortgagees to Gajadhar Teli, who thereupon brought the present suit for sale of the 6 bighas, 1 biswa, 12 dhurs, which were mortgaged under the deed of 1885, Mahadeo Pershad 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 Pershad, they might and ought to have put forward the mortgage of 1885 in defence of Mahadeo Pershad's claim 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.
5. The Court of first instance held against them on the ground that the heirs of Nadir Ali were only impleaded in Mahadeo Pershad's suit as mortgagors and not also as prior mortgagees.
6. 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.
7. 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 Pershad not only might, but also ought to, have put forward their prior mortgage in defence to the claim of Mahadeo Pershad to put the property to sale ill satisfaction of his debt. As we have already pointed out, Mahadeo Pershad did not admit the prior mortgage and seek to sell the property subject thereto.
8. 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 Pershad, was seeking to sell the property without the burden of the prior mortgage upon it. In our opinion, in these circumstances, they Ought to have put forward their prior mortgage in defence of the claim.
9. 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 Saiyed Mohammad Ibrahim Hosein Khan v. Ambika Pershad Singh 9 A.L.J. 332 : 14 Ind. Cas. 496 : 11 M.L.T. 265 : (1912) 1 M.W.N. 367 : 14 Bom. L.R. 2700 : 16 C.W.N. 505 : 15 C.L.J. 411 222 : M.L.J. 468 : 39 C. 527 is clearly applicable.
10. 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.
11. 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, Explanation II. The case of Surjiram Marwari v. Barhamdeo Pershad 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.'
12. In the case before us, Mahadeo Pershad 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 mortgagers under the deed of Mahadeo Pershad 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 Pershad was seeking to sell this property without regard to the prior mortgage, they ought to have pleaded their rights under the deed of 1886. Not having done so, their present suit is barred under the terms of Section 11, Civil Procedure Code. The appeal, therefore, fails and is dismissed with costs including fees on the higher scale.