1. This appeal is by one who was defendant 2 in the suit. It arises out of a claim for recovery of mortgage money by sale of two out of 15 properties originally mortgaged. The mortgage was a simple one and was executed on 6th January 1911 for a sum of Rs. 6,999-15-0. The appellant now represents the original mortgagor. In the course of time, subsequently to the execution of the mortgage-deed, out of the 15 properties mortgaged, which will be found detailed at p. 3 of our paper book, properties 1 to 9 were purchased by the mortgagees themselves. The properties 12 to 15 were purchased by one Zuber, from whom they were wrested, after a pre-emption suit, by one Khairunnissa. Mt. Khairunnissa brought a suit for redemption being suit No. 198 of 1918 in respect of the four villages purchased by her. To this suit, the present appellant was a party. In Khairunnissa's suit, an account was taken of what was the liability on a particular date fixed by the Judge for redemption of the several properties owned by the several parties. The learned Judge found that on 25th April 1918, the date fixed for payment of the mortgage money by Mt. Khairunnissa, a sum slightly over Rs. 1,800 was payable by the properties Nos. 10 and 11 which were still in the possession of the representatives of the original mortgagor. The plaintiffs claim recovery of a certain amount by sale of the two properties, namely Nos. 10 and 11 which are called Alwalpur and Shahpore.
2. The main question that had to be determined by the Court below was, what was the amount for which these two villages were liable. The learned Subordinate Judge held that the judgment in the earlier suit of 1918 operated as res judicata between the present plaintiff and the appellant, although they were arrayed on the same side, as defendants, in that suit of 1918. Taking Rs. 1,800 as the basis of the liability of the two villages, still owned by the appellant, the learned Judge decreed the claim. In this Court, two points have been urged. The first is that the judgment of the earlier suit did not operate as res judicata, and the second is that even in the view taken by the Court below, the amount decreed is too much.
3. On the first point, we cannot agree with the argument of the learned Counsel for the appellant. It was urged that in the earlier suit, the appellant was not a necessary party. That is not our view of Order 34, Rule 1, Civil P.C. The suit was a redemption suit and, therefore, in the suit relating to a mortgage, the co-mortgagor of Khairunnissa, namely, the present appellant was a necessary party. The learned Counsel for the appellant has very fairly drawn our attention to the case of Ahmad Husain v. Muhammad Qasim Khan : AIR1926All46 , to which one of us was party. In that case it was held that in a suit for redemption, a co-mortgagor who was not suing for redemption was a necessary party. We hold that in the earlier suit, Mt. Ghura Kuer, the appellant, was a necessary party.
4. Coming to the question of res judicata we think that the decision of the Court below was right. It was necessary, in order to give relief to Khairunnissa, to decide what was the liability of the present appellant's property as also what was the liability of the properties purchased by the present respondents. The question could be settled only in the presence of these parties. The interests of both the parties were conflicting, inasmuch as, if a heavier burden was put on one party, the benefit of that would be reaped by the other party. The two sets of defendants were therefore interested in seeing that a proper amount was found payable by Khairunnissa. We hold that the judgment of 1918 operated as res judicata.
5. Coming to the second point, the contention of the learned Counsel for the appellant seems to be right. The actual amount payable by the two villages Alwalpur and Shahpore was found to have been Rs. 1,869, as on 25th April 1918. According to the terms of the mortgage, interest due up to the due date, was to be added to the original amount lent and thereafter, interest was to be paid on the total amount at 15 per cent per annum. The amount found as due on 25th April 1918 consisted of a principal amount and an amount of accumulated interest. The principal amount was Rs. 917 and the accumulated interest was Rs. 952. Further interest, according to the terms of the mortgage-deed could run only on the sum of Rs. 917 and not on the amount of interest that had accumulated so far. In this respect the decree of the Court below will have to be modified. The learned Judge has allowed interest at the uniform rate of 15 per cent on the total amount of Rs. 1,800. We have already pointed out that the correct amount is not Rs. 1,800, but Rs. 1,869.
6. In the result, we modify the decree of the Court below to this extent that the plaintiff-respondents' claim stands decreed for recovery of Rs. 917 with interest thereon at 15 per cent per annum from 25th April 1918 to six months from this date which we fix for payment. To this entire sum will be added the sum of Rs. 952, the interest which accrued on the principal amount from the due date, which is 24th May 1911 to 25th April 1918. In case of default in payment of this total amount and proportionate costs, which we allow to the plaintiffs in both the Courts, the properties, namely Alwalpur and Shahpore, will be sold. The properties will be sold subject to the encumbrances described in the judgment of the Court below. After the date fixed for payment by this judgment, interest will run on the total amount of the total mortgage money and the costs at 6 per cent per annum till realization. The appellants will pay their costs in this Court and the Court below. In calculating the costs in the Court below, the amount of fees payable for the counsel of the plaintiffs will be calculated on the amount decreed, and if sum total of the fee paid when the suit was heard ex parte, and the fee paid later on, should exceed this amount the amount of fee will be limited to the sum already indicated.