1. This is a suit to recover the amount due under a deed of hypothecation, dated the 6th September 1884 and for sale of the property hypothecated. Both the Courts below have given decrees for the plaintiff; but in this Court it is contended that the suit should have been dismissed because the matter is (1) Res-judicata within Explanation II of Section 13 of the Civil Procedure Code and (2) because the plaint mortgage has ceased to exist as such having become merged as the plaintiff had become owner as well as mortgagee of the property hypothecated prior to the suit.
2. The facts are as follows:--On the 6th September 1884, the hypothecation bond now sued on was executed to Ranganatha Butt by Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa. Afterwards Ranganatha Davay and two of his sons, Balakrishna and Ramachandra, executed a simple debt bond to one Appasawmy Josier. Appasawmy died and his widows (of whom the present 1st defendant is one) brought Small Cause Suit No. 775 of 1886 against Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa under the bond and got a decree against Ranganatha Davay and his two sons Bala-krishna and Ramachandra only, the third son Venkatesa being exo-nerated from liability. In execution of that decree the plaint property was attached, but on the objection of the 3rd son Venkatesa Ranganatha Davay, the father having died, his one-third share was exonerated with costs and only the two-thirds belonging to Bala-krishna and Ramachandra was brought to sale. This was purchased in March 1890 by the 1st defendant, who obtained a sale certificate. Venkatesa, the 3rd son, in execution of his decree for costs against the defendant attached this two-thirds and brought it to sale and it was bought in March 1890 for Rs. 14 by his brother-in-law Bavani Sankar Davay, to whom in June 1891 the plaint mortgage had been transferred by Exhibit A, endorsed on Exhibit A, the hypothecation deed now sued on.
3. The plaintiff in this suit is the wife of Balakrishna.
4. On the 17th June 1891 by Exhibit G, Bavani Sankar Davay assigned to the plaintiff the present hypothecation right now sued on and also the two-thirds of the premises purchased by him in the auction sale on the execution by Venkatesa against the 1st defend-ant for costs and on the same date by Exhibit A Venkatesa sold his one-third share in the plaint premises also to the plaintiff--who thus apparently became assignee of the plaint hypotheca and owner of the whole of the plaint properties.
5. In 1894, however, the present 1st defendant, in O.S. No. 664 of 1894, sued Balakrishna, Ramachandra and Venkatesa, Bavani Sankara Davay and the plaintiff to set aside the auction sale of the two-thirds of the plaint property to Bavani Sankar Davay in execution for costs of Venkatesa and for possession on the ground that the sale was fraudulent and got a decree for possession.
6. It is contended that inasmuch as in that suit the present plain-tiff did not set up the hypothecation now sued on, she cannot sustain th present action as it could and ought to have been set up as a ground of defence in that action and therefore that the matter is res-judicata within Explanation II of Section 13 of the Civil Procedure Code in this suit and also that inasmuch as she was owner of the whole premises under Exhibits G and H, the hypothecation became merged and was not kept alive under Section 101 of the Transfer of Property Act.
7. We are of opinion that neither of these contentions can be sup-ported.
8. To deal with the last first, there was no merger because in law the plaintiff never became the owner of the whole premises, for that is the effect of the decree obtained by the 1st defendant in O.S. No. 664 of 1894, whereby it was held that the sale of the two-thirds was fraudulent and void and therefore never became the property of the plaintiff.
9. As regards the contention that the matter is res-judicata we think the appellant must also fail. The suit was to set aside an auction sale its fraudulent and void and for possession on the ground that the property and the right to possession remained in the 1st defendant. We think that the present hypothecation was not a matter which might or ought to have been made a ground of defence or attack in such a suit, as it was wholly immaterial in answer to such an action and could not alter the result which was to set aside the auction sale and to revest the property in the 1st defendant. If it had been set up it could be no answer even to the claim for possession for the right to possession would nevertheless be in the 1st defendant who would be entitled to hold the possession until the mortgagee wished to recover the money advanced under the hypothecation-deed and she could not be compelled to demand its repayment at that particular time merely because the mortgagor claimed that she and not the mortgagee was entitled to possession by reason of the fact that the document under which the mortgagee purported to have obtained possession irrespective of the hypothecation deed was fraudulent and void.
10. The other points raised were not pressed and do not need to be gone into.
11. We, therefore, dismiss this second appeal with costs.