1. The first ground of appeal urged is that the suit is not sustainable with regard to Section 43, Civil Procedure Code, and we are referred to the decision of this Court in Muthunarayana Reddi v. Rayalu Reddi Second Appeal No. 181 of 1895 unreported. The case referred to is not in point, for there the plaintiff in his first suit ignored the existence of the defendant's mortgage and falsely alleging that the defendant was a trespasser sued to eject him as such. In the present case, the. plaintiff in his earlier suit (Original Suit No. 259 of 1888) did not ignore the defendant's earlier mortgage. On the contrary, he recited it and the sale under it, but he complained that the defendant had fraudulently failed to make him a party to the suit (Original Suit No. 859 of 1884 on the mortgage and he, therefore, sought for a declaration that the auction sale was not binding on him and that the land should he restored to him (plaintiff). The final decree in that suit was that plaintiff could not get possession without redeeming the defendant's mortgage, and the Court expressly refused to decide the other issues, The plaintiff was not then suing to redeem, nor was he bound to do so. He merely wished to get rid of the effect which the defendant's purchase at the auction might have on his rights. He was clearly entitled to do this without, at the same time, suing to redeem,inasmuch as the defendant had omitted to make him a party to the suit on the mortgage, as he was bound to do under Section 85, Transfer of Property Act. There is thus no foundation for the plea that plaintiff's suit is res judicata, or is barred under Section 43, Civil Procedure Code.
2. The plaintiff not having been made a party to Original Suit No. 859 of 1884 is not bound by the sale there under. It was the defendant's duty to have made him a party so as to give him an opportunity of exercising his right (as purchaser of the equity of redemption) to redeem the defendant's mortgage. The defendant having failed in that duty cannot now take advantage of his own omission so as to shut out the plaintiff's right to redeem. Even if the defendant was ignorant of plaintiff's purchase, which may well be doubted in the present case, that will not affect the plaintiff's inherent right to redeem nor will the fact that plaintiff became aware of the defendant's suit (Original Suit No. 859 of 1884) before the judgment therein was pronounced. The decree of the lower Appellate Court was, therefore, right. We confirm it and dismiss the second appeal with costs.