1. I was a party to the Bench ruling of this Court which has been quoted by the learned Judge of the lower Appellate Court in support of his opinion [Collector of Moradabad v. Mohammad Hidayat Ali Khan 0065/1926 : AIR1926All449 ]. I have there stated in detail how that case was distinguishable from the Privy Council case of Sri Gopal v. Pirthi Singh 24 A. 429 : 29 I.A. 118 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 (P.C.). The owner of the property was Ejaz Husain who made several mortgages which taken in order are these:
22nd December, 1921, to Deokinandan.
21st January, 1922, to Ram Saran Das, and.
10th March, 1922, to Afzal Begam.
2. The last mortgage was executed to pay off the debt of Deokinandan and the mortgage of Deokinandan was paid off the very next day on the 11th of March, 1922. On the 13th of March, 1924, Ram Saran Das sued for sale on foot of his mortgage of 21st January, 1922, making besides the mortgagor both Deokinandan and Afzal Begam parties (defendants) to the suit. A certified copy of the plaint is on the record. In that plaint Ram Saran Das specifically stated that the charge of Deokinandan and Afzal Begam was subsequent to his. His prayer was that the property may be sold to satisfy his debt, and it was not admitted that the property may be sold subject to the charge of Deokinandan and Afzal Begam. From the dates given above it will be seen that a question of subrogation arose as to whether Afzal Begam was subrogated to the place of Deokinandan. In his plaint Ram Saran Das specifically denied such subrogation treating Afzal Begam's mortgage as subsequent and not entitled to replace the mortgage of Deokinandan. Deokinandan had been paid off, and so naturally he took no interest in the litigation. Afzal Begam also did not put in an appearance, and a decree was passed in favour of Ram Saran Das, who thereupon purchased the property in execution thereof. By a private sale this property was subsequently sold by Ram Saran Das to Mushtaq Ahmad. The present suit was instituted by Musammat Afzal Begam against the representative of the original mortgagor and Mushtaq Ahmad for sale on foot of the mortgage of 22nd December, 1921, on the ground that by reason of subrogation Musammat Afzal Begam had priority over the mortgage of Ram Saran Das. Mushtaq Ahmad's defence was one under Section 11 of the Code of Civil Procedure that in the suit of 13th March, 1924, the point had already been decided of Ram Saran Das's priority over Deokinandan and Afzal Begam. The two Subordinate Courts repelled this defence on the basis of one ruling already mentioned and the other, a Privy Council ruling in the case of Radhe Kishen v. Khurshed Hossein 55 Ind. Cas. 959 : 18 A.L.J. 401 : 47 C. 662 : (1920) M.W.N. 308 : 38 M.L.J. 424 : 11 L.W. 518 : 22 Bom. L.R. 557 : 47 I.A 11 : 28 M.L.T. 425 : 25 C. W.N. 417 (P.C.). In the Privy Council case the prior mortgagee was made a party. He did not appear, but in the plaint no aspersion was cast on the priority of the prior mortgagee. Their Lordships explained the position of the case at page 406 Page of 18 A.L.J.--[Ed]: 'Bakhtawar Mull's position, therefore, was that he was a prior mortgagee with a paramount claim outside the controversy of the suit unless his mortgage was impugned. Consequently, to sustain the plea of res judicata it is incumbent on the Sahus' (that is the defendants) 'in the circumstances of this case to show that they sought in the former suit to displace Bakhtawar Mull's prior title and postpone it to their own. For this it would have been necessary for the Sahus as plaintiffs in the former suit to allege a distinct case in their plaint in derogation of Bakhtawar Mull's priority. But from the records of this suit it does not appear that anything of the kind was done, and, as has been observed of things that do not appear and things that do not exist the reckoning in a Court of Law is the same'. In the case before me it does appear that Ram Saran has declared Afzal Begam's and Deokinandan's rights to be subsequent to his and, therefore, it must be accepted that he sought to displace their priority and postpone their mortgages to his own. Similarly in the Allahabad case it was pointed put in the judgment: 'To raise the plea of res judicata it would be necessary for the subsequent mortgagees as plaintiffs in the former suit to allege a distinct claim in the plaint in derogation of the priority of the prior mortgage'. In that judgment the main ruling of the Privy Council in the case reported as Sri Gopal v. Pirthi Singh 24 A. 429 : 29 I.A. 118 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 (P.C.) was thus distinguished: 'That ruling, however is distinguishable on the ground that in that case the prayer of the subsequent mortgagee was that the property should be sold free of incumbrances. The prior mortgagee, therefore, had notice that his priority was attacked and, in consequence, the prior mortgagee was bound to plead priority and having failed to do so was barred from putting it forward in a subsequent suit or subsequent proceeding in execution.' Such a distinction does not arise in the present case. Ram Saran Das did attack the priority of Deokinandan, and as I have shown above the question was one of consideration as regards subrogation and one which required a decision by the Court. If Deokinandan had not been paid off it might have been argued that no question could arise as to his priority. But as Deokinandan was paid off by raising funds by a mortgage subsequent to that of Ram Saran Das the question of subrogation arose and, however strong the claim of Afzal Begam might have been on the subject it was a question worthy of consideration and decision and which would form the subject of affirmation on one side and denial on the other. As far back as 1897 a Full Bench of this Court asserted the principle of res judicata in a case like the present in the case of Sri Gopal v. Pirthi Singh 20 A. 110 : A.W.N. (1897) 216. This view has been followed consistently in this Court in Chandar Sekhar Tewari v. Balakdhari Dubey 15 Ind. Cas. 611 : 10 A.L.J. 149 and in Gajadhar Teli v. Musammat Bhagwanti 16 Ind. Cas. 8 : 34 A. 599 : 10 A.L.J. 244. Of the two relevant Privy Council rulings, one, of 1902, has already been quoted, the other, of 1912, is that of Saiyed Mohammad Ibrahim Hosein Khan v. Ambika Pershad Singh 14 Ind. Cas. 496 : 9 A.L.J. 332 : 11 M.L.T. 265 : (1912) M.W.N. 367 : 14 Bom. L.R. 280 : 16 C.W. N. 505 : 15 C.L.J. 411 : 22 M.L.J. 468 : 39 C. 527 (P.C.).
3. The suit was barred under Section 11 of the Code of Civil Procedure, Explanation IV. I set aside the decrees of the two Subordinate Courts and dismiss the plaintiff's suit with costs of all the Courts.