Sadasiva Aiyar, J.
1. The plaintiffs 1 and 2 are the appellants.
2. The suit was brought for sale of 13 properties hypothecated under 7 hypothecation bonds. The plaint impleaded 17 defendants. The 7th defendant died after suit and three more defendants (18 to 20) were added as his legal representatives.
3. As above stated, the suit looks a simple one, but in reality it is very complicated owing to the seven hypothecated documents sued on containing only one property in common to all of them, namely, item t, a house in Madura which is the most valuable property. Four of them B.C.D. and E, hypothecated (among others) certain properties which are not included in. the plaint schedule, the plaintiffs having given up their right to proceed against those properties. The common mortgagor in the documents Exhibits B to G (the later six documents) is the 1st defendant whose undivided sons are the defendants 2 and 3. The mortgagor who executed the 1st document, Exhibit A is the 1st defendant's deceased father. The other defendants 4 to 17 are subsequent mortgagees or alienees of one or more of the 13 plaint properties. While the above facts make the suit sufficiently complex? more serious complexities are due to two other sets of facts :-(1) the plaintiffs having brought :5 separate suits on the 5 later documents Exhibit C to G in 1901 in the Madura District Munsif's Court against the 1st defendant and his sons alone without impleading the alienees and puisne encumbrancers of some of the properties and having obtained separate decrees for sale which remained unexecuted till the date of this suit; (2) the plaintiffs having brought two other suits again, 246 and 247 of 1904 in the Madura Munsif's Court on the first two documents, (Exhibits A and B) having then withdrawn one of them in order to consolidate the claim therein with that in the other suit as directed by the appellate Court (when the decrees of the District Munsif in those two suits went up on appeal) and having failed to present the consolidated plaint to the proper court after so withdrawing one of the suits when the Thirumangalam District Munsif's Court to which the consolidated plaint was presented returned that consolidated plaint for presentation to the Madura Munsif's Court.
4. The learned Subordinate judge dismissed the suit on the following conclusions:
(1) The plaintiffs having obtained decrees in O.S. Nos. 142 to 146 of 1901 in the District Munsif's Court of Madura on the five bonds Exhibits C. to G. are barred by res judicata from bringing the present suit as regards the relicts claimed on those bonds though the present suit includes the claims on two other bonds A and B and though the present suit has been brought in the Sub Court of Madura which is a superior Court to that of the District Munsif's Court of Madura. The plaintiff's only remedy for recovery of the sums due under the bonds Exhibits C to G is to execute the decree in those suits. (2) The suit on Exhibit B. is barred by their withdrawal of the former suit No. 247 of 1904 in the Madura Munsif's Court (which afterwards became 314 of 1906 in the Thirumangalam Munsif's Court). Though they withdrew it in order to consolidate the claim in the connected suit 313 of 1906 in the Thirumangalam Munsif's Court and though they did present the consolidated plaint in the Thirumangalam Munsif's Court, they failed to present the consolidated plaint in the Madura Munsif's Court when it was returned to them for such presentation by the Thirumangalam Munsif's Court. Permission to withdraw the claim of Exhibit B was accompanied fey only a limited and particular permission of the court, namely, to consolidate it with their claim in the twin suit but they had no permission to consolidate it with six other claims and to bring an entirely new suit in the Sub-Court. Hence their withdrawal of their claim on Exhibit B stands and they are barred by Order 23 of the Civil Procedure Code from maintaining the claim on Exhibit B in the present suit. (3) The first two bonds, Exhibits A and B have been discharged partly by payments which were expressly made by the mortgagors towards those bonds and partly by payments which in law the plaintiffs ought to have credited towards those bonds. 5. In arriving at those conclusions the learned Subordinate Judge has made some inaccurate statements in his judgment which however are not material. For instance, he says in para. 23 of his judgment that the execution of the decree in the five suits 142 to 146 of 1901 had become time barred on the date of this suit. It is admitted for the respondents that the execution had not so become time-barred. Again, in setting out the facts regarding the withdrawal of the suit O.S. No. 314 of 1906, he states that the consolidated plaint was returned for want of jurisdiction by the District Munsif's Court of Madura owing' to unauthorised additional reliefs having been inserted in the consolidated plaint. This statement is very inaccurate as the unauthorised additions were afterwards excised and the plaint was returned by the court finally not on account of such additions but by reason of the transfer of jurisdiction over the mortgaged properties and the return was made by the Thirumangalam Munsif's Court. However, as I said, these inaccuracies do not affect the main reasons given by the lower court for its conclusions.
5. I shall now shortly refer to the question whether the plaintiff's suit on the bonds Exhibit C to G are barred by res judicata. On this question, several very difficult points of law (with reference to numerous authorities both English and Indian) were argued with much elaborateness before us on both sides.
6. Two of those points were (a) whether the causes of action on these five bonds when joined in this present suit with the causes of action on the two earlier bonds Exhibits A and B do not amalgamate into a single new cause of action so as to relieve the plaintiffs from the bar of res judicata; (b) whether the addition of numerous defendants joined in this suit including' alienees and puisne mortgagees (whereas the five suits 142 to 146 of 1901 did not include these additional defendants as parties) do not make the cause of action in this suit different so as to relieve the plaintiffs from the bar of res judicata.
7. As regards this latter contention I might remark, in passing that the additional defendants 5 to 17 in the present suit (the defendants 18 to 20 being as stated already the legal representatives of the 7th defendant) would have been wholly unnecessary and superfluous parties in the former five suits according to the plaintiffs own allegations. For they say in paragraph 33 of their plaint that the alienations made in favour of the defendants 5 to 17 have been made 'benami', that is, are sham transactions if so, the omission to make them parties to the former five suits could in no way affect the plaintiff's rights and the inclusion of such sham alienees in the present suit could not have any legal effect in the matter of effecting a change in their cause of action so as to make it different from the causes of action in the previous five suits, so far as their claims on those five bonds are concerned.
8. Having referred to this question of res judicata in respect of the claims on the five bonds, I do not think it necessary to express an opinion thereon especially as the question is a very difficult one and very learned judges have expressed conflicting views on the question.
9. I think that the claims so far as they are based on those five bonds Exhibits C. to G. fail on an independent ground which though not argued in the lower court was argued elaborately before us and being a pure question of law has been considered by us. That question may be shortly stated thus : Whether the plaintiffs having obtained decrees in the five suits on the mortgage documents Exhibits C. to G. and having obtained orders absolute for sale in those suits in accordance with those decrees, the securities had become extinguished by operation of law, that is, by operation of Section 89 of the Transfer of Property Act and whether therefore no claim could be advanced in the present suit based on those securities. The five suits of 1901 were brought when Sections 85 to 90 of the Transfer of Property Act were in force, they having been repealed only in 1908 by the Civil. Procedure Code of that year. The five suits were decreed in March and April 1901. Orders absolute for sale under Section 89 of the Transfer of Property Act were passed in July and August 1901 (See Exhibit XI series). Section 89 says that on an order absolute being made, the defendant's right to redeem and the security shall both be extinguished. In Hur Persad Lal v. Dalmardher Singh I.L.R. (1905) Gal. 891, the first mortgagee not having notice of a second mortgage, sued the mortgagor alone and obtained a decree on his mortgage. The 2nd mortgagees afterwards obtained a decree for sale on their second mortgage without making the first mortgagee a party. The first mortgagee's assignee purchased the property in execution of his decree for sale. The second mortgagees had previously purchased under their decree for sale and had taken possession. The first mortgagee's assignee who was also the court auction purchaser sued the second mortgagees (also court auction purchasers) for possession giving the second mortgagees the option to redeem the first mortgage. One of the learned Judges (Brett, J.) of the Division Bench which first heard the second appeal in the Calcutta High Court held that the first mortgagee's suit was valid against the second mortgagees though the latter were not parties to the former's suit and that their only right was to have the option of redemption. As regards Section 89, the learned Judge said ' it is pointed out that the plaintiff cannot possibly bring a fresh suit on the prior mortgage bond as the mortgage had in fact merged in the decree, which was assigned to him and as after the sale and his purchase in execution of that decree the lien and the mortgage was extinguished (See Section 89 of the Transfer of Property Act). This contention is in my opinion sound; and as the plaintiff, even if such a suit had not been barred by limitation, could not have brought on the mortgage of December 1885, his present suit based on the decree assigned to him and the rights purchased by him in execution of that decree was the only properly framed suit that he could bring for relief '; (Rampini, J.) the other learned Judge did not refer to Section 89 but held that the second mortgagees having first purchased in court auction had the superior right to possession and that the 1st mortgagee's claim on his first mortgage being barred on the date of his present suit, the second mortgagees were not bound to redeem him. The case went before the third Judge (Mitra, J.) on account of this difference of opinion and he agreed with Brett, J. though he does not refer io the observations found in the judgment of Brett, J. in regard to Section 89 of the Transfer of Property Act.
10. Now the question whether when Sections 85 to 90 of the Transfer of Property Act were in force and when the first mortgagee had brought a suit without impleading the second mortgagee and obtained a decree and an order absolute for sale, he could afterwards bring a fresh suit against the second mortgagee alone for sale and whether if he could bring a second suit for sale, he should or could make the mortgagors also parties though the mortgagor's rights had been sold away in execution of his first decree or questions on which there has been difference of opinion. I shall refer to only two clases. In Jugdeo Singh v. Habibullah Khan (1907) CRI.L.J. (1) that very learned Judge (Mookerjee, J.) says ' It is unnecessary for our present purpose to consider whether it is open to a mortgagee who has omitted to implead a neccessary party to maintain another suit to enforce his security against the party excluded; that he may do so under exceptional circumstances, appears to have been affirmed by the Allahabad High Court in Dharam Singh v. Angan Lal I.L.R. (1899) All. 301 and Muhammed Askarl v. Radha Rani Singh I.L.R. (1900) All. 307, but even if it be assumed that it is open to a mortgagee to enforce his security by a fresh suit for sale against an excluded party, which hoever we must not be taken to affirm, it is well settled that it is not obligatory upon him to do so.' In Ghnnu Pillay v. VenkalaswamyChettier I.L.R. (1915) Mad. 77 : 30 M.I.J. 347. Srinivasa Aiyangar, J. expresses the opinion at p. 88 that where the first mortgagee had omitted to make the second mortgagee a party and proceeded to sale, ' the purchaser whether himself or another, can bring a fresh suit for sale making the second mortgagee a party.' He does nor refer to the above decision in Jugdeo Singh v. Habibullah Khan (1907) Cri.L.J. (1) where Mookerjee, J. was not at all prepared to affirm the existence of any such right. I am myself inclined to hold that where the first mortgagee had notice of a second mortgage (which he must be presumed to have where the second mortgage is registered) and where he omits to make the second mortgagee a party as he was bound to do under Section 85 of the Transfer of Property Act and Order 34, Rule 1 of the present Civil Procedure Code, he ought not to be allowed to bring a second suit for sale against the second mortgagee with or without the addition as party of the original mortgagor against whom he had already obtained a decree, simply because he finds his first decree valueless against the second mortgagee and is confronted with difficulties owing to the second Mortgagee's putting forward his rights. It is however unnecessary to pursue this point further for the decision of this case.
11. The language of Section 89 is quite clear that on the passing of the order absolute in a suit for sale brought by a mortgagee, ' the security' (that is, his security) shall be extinguished. It does not state that the security shall be extinguished only if all the persons entitled to redeem have properly been made parties to the suit. Mr., Ananthakrishna Aiyar argued that the security should be deemed to be extinguished only so far as the persons who were made defendants to the suit were concerned and not as regards the second mortgagee who was not made a party to the first suit for sale. But the language of the section is perfectly general and in Het Ram v. Shadi Ram I.L.R. (1918) All. 407, Viscount Haldane while delivering the judgment of the Privy Council in a case where the facts were similar, made the following pronouncement : ' Under Section 85, the first mortgagee was bound to make the second mortgagee a party to the suit for sale, and as he did not do so, the second mortgagee was not bound by the order for sale which could only have been operative subject to his title. Section 89 is important. Under this section, where an order, for sale under Section 85 has been made such as was made here in 1892 ' (in this case it was in 1901) ' in favour of the first mortgagee, the mortgagor or the second mortgagee, if he has been made a defendant would have had the right to redeem if he had paid within the date fixed by the decree the amount due. If such payment is not made, a decree absolute may be passed such as was made in 1895,' (in this case decree absolute was passed in July and August 1901) ' for sale and for payment of the amount realised into court. The section then provides that the defendant's right to redeem and the security shall both be extinguished. The construction which their Lordships put on the language so used is that on the making of the order absolute, the security as well as the defendant's right to redeem are both extinguished and that for the right of the mortgagee under his security, there is substituted a right to a sale conferred by the decree. '' I do ' not think that this language of their Lordships can be construed as meaning that the security was extinguished only so far as the mortgagor was concerned, but remained alive in respect of the puisne mortgagee. Section 89 of the Transfer of Property Act has no doubt now been replaced by Order 34, Rule 5 of the Civil Procedure Code and this rule does not contain the words ' and thereupon the defendant's right to redeem and the security shall both be extinguished.' It may be a question therefore whether the second suit on the security may not lie under certain circumstances against parties other than the defendants in the first suit even though a final decree for sale had been passed in the former suit under Order 34, Rule 5 of the Code of Civil Procedure of 1908. But as I said before, the decree in the five suits on the bonds C to G had been passed when Sections 88 and 89 of the Transfer of Property Act were in force and I consider myself bound by the dictum of their Lordships of the Privy Council in Het Rant v. Shadi Ram I.L.R. (1918) All. 407 to hold that where a decree had been obtained against a mortgagor who had not lost the right of redemption 'though the second mortgagee had not been made a party, the security itself became extinguished if an order absolute for sale had been made under Section 89 of Act IV of 1882. When the security itself that is, the mortgage document creating the mortgage charge becomes inoperative as security, it follows that it could not be again sued upon as if it continued to have force as a mortgage bond securing immoveable property for payment of the loan, that is, as if the ' security ' created under it had not become extinguished. I would therefore confirm the dismissal of the suit so far as it relates to the claims made on Exhibits C to G though on a different ground from the grounds relied on by the lower court.
12. The next question is whether Exhibits A and B have both been discharged by payments. To deal intelligibly with this question, it is necessary to enter into the following details. I shall first deal with Exhibit B. Exhibit B is dated 23rd March 1892 for Rs. 300 and provides for re-payment in six months with interest at 1 1/8th per cent, per mensem and in default with interest at 1 1/8th per cent. per mensem compound interest with six month's rests. One of the properties mortgaged under Exhibit B is Kathirithundu or PeriaKathirithundu. This property was afterwards mortgaged in May 1893 to one Sundararaja Aiyangar under Exhibits XVI for Rs. 150 and out of that money interest up to 14th October, 1893 was paid towards Exhibit B as endorsed upon Exhibit B. The learned Subordinate Judge thought that besides this Rs. 150 another Rs. 150 had been paid about that time to the plaintiffs by the first defendant. This finding of the payment of another Rs. 150 rests in my opinion on mere surmises and not on any tangible evidence. Taking it therefore that only Rs. 150 was received by the plaintiffs in September 193, the Subordinate Judge considers that the whole of that amount should have been credited in payment of the sum due under Ex. B, that is, Rs. 64 towards interest and Rs. 86 towards principal. The plaintiff however in his account, Exhibit G 1, has credited only Rs. 64 towards interest of Exh. B and the balance of Rs. 86 (along with some other amount) towards the interest of Exhibits A and C and towards sums due on promissory notes executed by the mortgagor. At that time, that is in 1893, there were no pusine mortgagees to protect and 1 accept the plaintiff's evidence that the balance of 86 Rupees was credited towards the interest due on Exhibits A and C and towards the discharge of certain promissory notes with the consent of the mortgagor. There was no specific contract between the mortgagor and the mortgagee that sums realised by the mortgagors through dealings with Kathirithundu should be wholly applied in reduction of the amount due under Exhibit B so that the amount due under B became at once diminished by the amount of Exhibit XVI as soon as Exhibit XVI was executed (as in the English case quoted by the respondent's vakil Mr. K.V. Krishnaswami Aiyar). There was nothing therefore to prevent the mortgagor and the mortgagee from appropriating the sum of Rs. 150 as they pleased at that time.
13. The next relevant transaction is the following:
The mortgagor's rights in another property in Pallichanthai village hypothecated under Exhibits B and A were lost by his othi rights in that property having been redeemed in June 1894 by the owner of that property on payment of Rs. 250. That sum was received by the plaintiffs. Instead of crediting the whole of that amount towards B, the 1st plaintiff credited Rs. 60 out of it towards interest due on Exhibit A till 14-10-94, Rs. 42 towards interest on B till 14-10-94, Rs. 63 towards interest on C till 14-10-94 and the balance towards unsecured debts. But he was not entitled to do so as it would affect the puisne mortgagee Ramaswami Aiyar, whose mortgage over the item i (and other properties) had come into existence on 8th January 1894 (See Exhibit VIII). That puisne mortgagee's rights are now vested in the 7th defendant and his heirs. It seems to me a settled principle of law that a mortgagee over several items of properties, who is paid out of the proceeds obtained by the realization of one of his securities cannot be allowed to appropriate the amount towards sums due to him on unsecured debts or on debts secured on other properties so as to affect subsequent mortgagees, who have lent on the security of properties of the mortgagor. As said by Dr. Rash Behari Ghose at page 510 of his work ' There is a well settled rule that if the mortgagee received any money by means of or by virtue of the security, it must be applied in reduction of the mortgage debt. Thus, if a mortgagee releases a portion of the premises to a purchaser of the equity of redemption of that portion, the money paid for such release cannot be applied in discharge of other debts due to him from the mortgagor'. I therefore agree with the Subordinate Judge that this Rs. 250 should be wholly credited towards Exhibit B. So appropriating it to the account of B, the mortgage account of B stands thus: The principal alone was due on 14-10-93 and it is Rs. 300-0-0. Interest for six months at the original rate of 1 1/4 per cent. (the enhanced rate of 1 1/4 being held penal as admitted by the conduct of both sides in the calculation of interest in the accounts) is Rs. 20-4-0; total Rs. 320-4-0. Compound interest for six months till 14-10-94 is 21-9-11; total Rs. 341-13-11 paid on 24-6-94. Rs. 250 which with the interest Rs. 10-5-0 up to 13-10-94 amounts to Rs. 260-5-0, the balance due on 14-10-94 is 81-9-0. This sum of Rs. 81-9-0 with compound interest up to the date of this suit 22-1-12 comes to Rs. 477-8-o. But this calculation of the amount due under Exhibit B is made on the assumption that notwithstanding the withdrawal of the suit 314 of 1906, plaintiffs are not barred from putting forward their claim on that document in this suit. I shall deal with this question of law later on.
14. Coming to Exhibit A, the principal sum due under it on 14-10-93 was Rs. 500-0-0, interest till then having been paid up according to the endorsement thereon. With compound interest at the original rate, the amount due on 14-10-94 was Rs. 786-12-2. Meanwhile, in December 1896 the 1st defendant sold the cocoanut tope at Manalur (see Exhibit 15) which along with the Madura house item 1 were hypothecated under A. Plaintiffs on n-3-97 received Rs. 650 of the purchase money. Instead of crediting the whole of this Rs. 650 towards Exhibit A, the plaintiff has in his plaint credited out of it the interest up to 12-7-98 due on the document A and credited the balance towards interest due on four other documents B, C, I) and E. His statement in the plaint paragraphs 12 and 13 that endorsements have been made on all those documents by the 1st defendant of the payments of interest out of this Rs. 650 on those documents themselves is inaccurate, at least to some extent as no such endorsement is found on Ex. B. When the 1st defendant executed Exhibit F however in July 1898 some such appropriation of what had been received long ago in December, 1896 by sale of Manalur tope seems to have been agreed upon between the plaintiff and the 1st defendant. For the reasons already given, the whole of this sum of Rs. 650 obtained by sale of one of the securities mentioned in Exhibit 16. A ought to be credited towards Exhibit A itself. Thus crediting Rs. 650 as paid on 11-3-1897 towards A and adding interest up to 13-10-97 Rs. 46-2-5, the balance due on 14-10-97 under A is only Rs. 90-9-9. Calculating compound interest with yearly rests on that sum, the amount due on date of suit would be Rs. 457-6-1 and on the date of next rest-day after this decree (14-10-1919) is Rs. 1096-7-7.
15. I shall next refer to the question whether the claim under Exhibit B is barred by the plaintiff's having withdrawn the suit O.S. No. 314 of 1906 based on that bond. This is again a very difficult question which was elaborately argued. Order 23, Rule 1, of the Civil Procedure Code relates to withdrawal of suits. So far as an unconditional withdrawal is concerned, it is of course wholly at the option of the plaintiff and the Court has nothing to do with it except as regards providing for costs already incurred (See Order 23, Rule 1 Clause 1). It is only where he wants some permission that he has to make an application under Clause 2. But the only permission contemplated under Clause 2 is permission to institute a fresh suit in respect of the subject matter of the suit, or such part of the claim as is withdrawn or abandoned. The permission granted in suit O.S. No. 314 of 1906 seems to have been not to institute a fresh suit but to consolidate the claim in that suit with the claim in suit O.S. No. 313 of 1906. Assuming that such a permission ought not to have been granted, the order is not a nullity. See Tuljaram Row v. Gopala Aiyar (1910) 32 M.L.J. 434. And without strictly following the permission, the plaintiffs could not be heard to say that the proper order which ought to have been passed was to have allowed them to institute a fresh suit. The further argument on the plaintiffs' side was to the effect that though the suit was withdrawn without liberty to bring a fresh suit but with liberty only to consolidate the claim in the withdrawn suit with the claim in another suit, the penalty mentioned in Clause 3 of Order 23, Rule 1, namely that the plaintiff should be precluded from instituting a fresh suit in respect of such subject-matter, did not follow because there was some sort of permission. I am unable to follow this argument that where the permission granted is not the permission referred to in Sub-rule 2 (that is, is not the permission to institute a fresh suit), the plaintiff escapes the penalty of being precluded from instituting a fresh suit in respect of such matter. I therefore hold that the claim under Exhibit B is barred by Order 23 of the Civil Procedure Code.
16. In the written statements of the defendants 2 and 3 (defendants 1,8,9,11, 13 and 16 having been exparte) no defence was raised as regards the claims under A and B except the two, namely, (a) that the documents had been discharged by payments if appropriated in a proper manner; and (b) that the claim on B was barred by its withdrawal. I have found that on the date of the suit Rs. 457 and odd was due under A, and Rs. 477-8-0 under B. So far as the claim under Exh. B is concerned, I have just now held that it is barred by the withdrawal of suit O.S. No. 314 of 1906. The plea of full discharge of Ex. A having been found against, it follows that a decree should be passed for the sum of Rs. 420 and subsequent interest due on the claim under Ex. A in the usual form of a mortgage decree, the sum of Rs. 1096 and odd being due on 14-10-1919 and subsequent interest at 6 per cent, being calculated till 14-4-1920, the date fixed for redemption. No further interest will be allowed after 14-4-1920.
17. The 4th defendant and some of the other defendants, however, contended generally that the claims under all their documents, were barred by limitation. The second issue in the case raises that question of limitation. The learned Subordinate Judge held in para. 25 that the claim under none of the documents was barred because the first defendant had on 30-1-1901 admitted in G (the bond of 30-1-1900) that he was liable for the claims under Ex. A and B and all the other previous bonds. This suit was brought on 20-1-1912. Mr. K.V. Krishnaswami Aiyar for the respondents contended (as he was entitled to support the Subordinate Judge's dismissal of the suit on any ground decided against him in the Lower Court), that the Subordinate Judge was wrong on the question of limitation as regards the bond A (which alone we need consider now) and that the first defendant's acknowledgment would not save limitation so far as the puisne mortgagees and the alienee (fourth defendant) are concerned. In Krishna Chandra Saha v. Bhlmachandra Saha I.L.R. (1905) Cal. 1077, Maclean, C.J. and Mittra, J. held that such an acknowledgment would give the mortgagee a fresh start even against puisne mortgagees provided the mortgagor when making the acknowledgment had a substantial interest in the mortgage contract. This case is quoted with approval by Benson and Sundara Aiyar, JJ. in Velayudam Plllai v. Vythlingam Plllai (1912) 24 M.L.J. 66. Mr. Krishnaswamy Aiyar argued however that the difference in language between Sections 19 and 20 of the Limitation Act was not given due weight in the Calcutta case and in the Madras case; in Section 19, the words are ' acknowledgment signed by the party against whom such property or right is claimed' or ' by some person through whom he derives title or liability. ' In Section 20 the words are ' paid by the person liable to pay the debt' ' by the debtor or by his agent. ' He therefore argued that while payment of even one pie towards interest or part payment of one pie towards principal in the handwriting of the mortgagor would revive time against the puisne mortgagee even a complete acknowledgment would bind only the mortgagor and not the puisne mortgagee if the latter is a party against whom the mortgagee claims 'rights ' or 'property.' But in both the cases above cited, the mortgagor making the acknowledgment seems to have been considered as included in the expression ' some person through whom he' (the party sought to be charged, namely the puisne mortgagee) ' derives title or liability' found in Section 19, though the title of the puisne mortgagee might have been derived before the date of acknowledgment provided however the mortgagor retained some substantial right in the properties at the date of the acknowledgment. Mr. Krishnaswami Aiyar relied upon some English cases in support of his contention against the views enunciated in the above two cases, but I am not inclined to follow those English cases especially as according to the Indian Act, acknowledgment is not merely an evidence of a new promise to pay which it seems to be under the English Law. On the whole, I think (though not without hesitation) that a mortgagor whose interest in the mortgaged property or liability under the mortgage contract had not wholly ceased to exist can make an acknowledgment of liability in favour of the first mortgagee so as to bind the puisne mortgagees also.
18. Mr. Krishnaswami Aiyar who argued the respondent's case with much resourcefulness and ability attempted to support the lower court's dismissal of the claim under Ex. A on the further ground that as the claim under A was not reserved by the plaintiffs when they obtained decrees for sale of item No. 1 and other property in the five suits 142 to 146 of 1901 brought on the subsequent bonds, there were implied decisions in those suits that the plaintiffs had not rights as mortgagees under either of the previous documents Exs. A and B and hence the claim under Exh. A is barred by res judicata or some principles of law analogous thereto. In Subramanier v. Balasubrahmaner I.L.R. (1915) Mad. 927. : 29 M.L.J. 195. I approved (if I may respectfully say so) of the judgment of Beaman, J. in Dhindo Ramachandru v. Bhikaje I.L.R. (1914) Bom. 38 The learned Judge held that a mortgagee who had two mortgages of different dates on the same property, having sued upon the mortgage of the later date and having had the property sold without reference to the prior mortgage, cannot afterwards bring a suit on the prior mortgage though the causes of action for the two suits were distinct. 'This rule is not the result of Order 2, Rule 2 of the Code of Civil Procedure, but it depends upon the principle of res judicata.' In the present case, however, no sale has been effected under any of the decrees in the five suits and though the plaintiffs cannot claim priority for the mortgage under Ex. 21. A over the five mortgages on which they have obtained decrees for sale that does not preclude them from suing on Ex. A as an independent cause of action so long as the property remains largely charged under that mortgage, that is, so long as it had not been sold away in such a manner in execution of any of the other decrees as to extinguish their mortgage rights under Ex. A also. Such an extinguishment will take place if and when item No. 1 is sold under any of the five decrees in the suits in which they had not reserved their rights under Ex. A but till then, it is not extinguished and till then they could maintain the suit on their distinct causes of action on Ex. A. v
19. In the result, in modification of the lower court's decree dismissing the whole suit, there will be a mortgage decree stipulating that if Rs. 1096-7-7 and interest at six per cent, till the date fixed by this decree for redemption, namely 14-4-1920 be not paid into Court a final decree for sale of item No. 1 shall be passed on the application of the plaintiffs. As the appellants have substantially failed, they should pay one set of costs in this appeal, to the principal contesting respondents, namely, 7th, 18th, 19th and 20th respondents and bear their own. Interest shall as said before cease to run from 14-4-1920. The plaintiffs and other defendants will bear their own costs in this Court. The Lower Court's decree as to costs incurred in that Court is confirmed.
20. I agree.