1. The dispute has arisen in the execution of a decree for sale on foot of a mortgage. The property is situated in village Jalalabad. On 27th August 1901 two mortgage deeds of 8 biswas property out of 20 biswas was executed by the owner in favour of Sahu Ganpat Rai and subsequently in 1909 the entire village was mortgaged to Sahu Parshadi Lal whose estate is now under the Court of Wards. Subsequently in 1912 twelve biswas out of the village was again mortgaged to Ganpat Rai.
2. In 1913 Ganpat Rai obtained two decrees for sale on foot of the two mortgages in his favour Parshadi Lal was made a party to the suit but on objection as to notice being raised by the Court of Wards, Parshadi Lal and the Court of Wards ware exempted from the suit and the decree for sale was not passed against them. The decree resulted in a sale in favour of the objector Hidayat Ali Khan in 1916.
3. In 1914 the Court of Wards sued the mortgagor for sale on foot of the mortgage of 1909 in favour of Parshadi Lal. Ganpat Rai was made a party to the suit but no mention was made in the plaint of his prior mortgage of 1901. It was stated in the plaint that Ganpat Rai was a subsequent mortgages under the mortgage of 1912 and had therefore a right to redeem. It is also admitted that in the plaint there was no specific prayer that the property should be sold free of encumbrances.
4. In the execution department Hidayat Ali Khan objected and pleaded that the village should be sold subject to the mortgage of 1909. This objection was granted by the learned Subordinate Judge and from that order the present appeal is filed by the Court of Wards.
5. The learned Government Advocate argued the matter with considerable ingenuity but we think that the opinion of the lower Court is correct. He relied on the Privy Council ruling reported in Sri Gopal v. Pirthi Singh (1902)24 All 429. 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 encumbrances. 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.
6. The facts of the present case are similar to those of the Privy Council case reported in Radha Kishan v. Khurshed Hossein AIR 1920 PC 81. Their Lordships held that the prior mortgagee was not barred from putting forward his claim, when the prior mortgage was not impugned in the former suit and the subsequent mortgagee had not sought to displace the prior title of the prior mortgagee and postpone it to his own. 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. This was not done in the present case. In fact, the appellant omitted to make any mention of the prior mortgage in his plaint, thereby leading the subsequent mortgagee to believe that the appellant, who was well aware of the prior mortgage, accepted its priority. It was argued that the appellant having ignored the prior mortgage, it was the duty of the prior mortgagee to plead his priority. 'There was no such duty cast on Ganpat Rai. He was not a necessary party except as subsequent; mortgagee and when the appellant failed to mention his prior mortgage, the presumption would be that its priority was not questioned by the appellant.
7. We dismiss the appeal with costs here on the higher scale.