1. The facts necessary for the decision of this appeal may be briefly stated. One Perambala Chettiar and his two sons, one an adult and the other a minor, sold certain lands to the father of the third defendant on 26th January, 1920, for Rs. 46,000. Rs. 34,000 out of the price was paid by the vendee and for the balance of Rs. 12,000 the vendee executed on the same day a deed of simple mortgage mortgaging the properties which he had just purchased. The mortgage (Ex. P-2) was executed in favour of the vendors, namely, Perambala, Kanakasabai, Perambala's son by his first wife and the first plaintiff in the present suit and ' a male child unnamed ', who, it is admitted, is the present first defendant. The present second defendant was not then born. The first and second defendants are Perambala's sons by his second wife. Though the mortgage deed was executed in favour of Perambala and his two sons then in existence, it is obvious that it was a mortgage in favour of the joint Hindu family. Perambala died on the 20th November, 1927, undivided from his sons.
2. On foot of the mortgage the present first and second defendants filed O.S. No. 15 of 1935 in the Court of the Subordinate Judge of Mayavaram impleading Kanakasabai as the first defendant along with the mortgagor's son, the present third defendant and subsequent transferees of portions of the hypotheca from the Official Receiver of East Tanjore in whom the property of the mortgagor had vested on his insolvency, the Official Receiver himself being the ninth defendant. In paragraph 7 of their plaint the plaintiff alleged that they alone were entitled to get the entire amount due on the mortgage as their father Perambala and their elder brother, Kanakasabai had discharged their own personal debts with the amount of Rs. 34,000 which had been received under the sale deed referred to above and also as they had sold:
the entire moveable properties like jewels, etc., existing in the family and utilised the amount for their personal use and as they had received amounts in several other ways.
3. There was a further allegation that the entire amount mentioned in the suit mortgage deed:
was accordingly set apart for the share of the first plaintiff in which however, the second plaintiff though born subsequent to the execution of the mortgage was entitled to participate.
4. In paragraph 15 they stated that the first defendant (Kanakasabai) did not agree to join in the filing of the suit and claimed that:
if for any reason it was found that the plaintiffs are not entitled to exclusively get the entire amount of the suit mortgage deed in this suit, it is necessary that a decree should be passed in favour of the plaintiffs at least for a two-third share in the amount of the suit mortgage deed.
5. A further alternative was mentioned in paragraph 16 wherein the plaintiffs asked that a decree should be passed:
both in favour of the plaintiffs and the first defendant if the Court should be of the opinion that a decree cannot be passed in favour of the plaintiffs alone for the entire amount of the suit mortgage and if it is found that a decree should jointly be passed in favour of the first defendant also.
6. Kanakasabai's written statement started with the averment that he was the undivided brother of the plaintiffs but added that he was entitled to a one-third share in the suit mortgage amount. The plaint allegation that the sale amount was utilised for discharging the personal debts of the first defendant and of Perambala was denied, and it was stated that the debts that were discharged were borrowed for family necessity. The allegation about the sale of jewels and the appropriation of the sale proceeds by this defendant and his father were also denied, and it was asserted that the suit mortgage amount was common ancestral property and that:
the two plaintiffs and this first defendant were each of them entitled in law to a one-third share in it.
7. The written statement proceeded to aver that:
the plaintiffs cannot raise any objection whatever in this suit to the decree which may prima facie be passed in favour of this defendant on the mortgage.
8. This was repeated in paragraph 11 wherein the defendant prayed that:
this Court may be pleased to direct that the decree which shall be passed according to the suit mortgage deed may be passed both it favour of the plaintiffs and this defendant.
9. The 12th defendant in the suit claimed certain priorities to which however no detailed reference is necessary.
10. The suit had a curious disposal. The issues material for the present discussion were set down as issues 2, 7 and 11. They were as follows:
2. Whether the first plaintiff is entitled to the entire mortgage money as claimed by him or he is entitled only to a half share as contended by the 12th defendant or, to a one-third share as contended by the first defendant?
7. Whether the plaintiffs are not entitled to claim the entire mortgage amount in this suit and whether a partition is the proper remedy?
11. Whether the first defendant is not entitled to a decree with plaintiff?
On the second issue the Court held that ' the plaintiffs are entitled to two-third and the first defendant to one-third as claimed by him.' Paragraph 18 of the judgment which dealt with the seventh issue is very obscure, and there has been considerable discussion before us as to its exact meaning. It is as follows:
It is not necessary that plaintiffs should sue for partition. They can sue for the mortgage money or any share thereof but if first defendant wants to work out his remedy, he must go to suit especially having regard to the fact he has not come forward to substantiate his claim and contentions. I do not suppose that plaintiffs can be allowed a full decree on security as claimed by them driving first defendant to a separate suit for his share against them. Plaintiffs will be entitled to a decree only to two-thirds of the amount claimed.
On a close reading of this paragraph in the light of the pleadings of the parties it seems to us that the learned Subordinate Judge first held that the plaintiffs could sue for two-thirds of the mortgage amount without previously filing a suit for partition between themselves and their brother, the first defendant. It was next held that the first defendant should not be given his share of the mortgage amount as he had failed ' to substantiate his claim and contentions', whatever that might mean. A suggestion was evidently made that a decree for the entire amount might be passed in favour of the plaintiffs subject to their giving security for satisfying the first defendant in respect of this share, the first defendant being directed to establish his right to such a share by a separate suit against the plaintiffs. The suggestion evidently did not meet with the approval of the learned Subordinate Judge. He therefore directed a decree to be passed in favour of the plaintiffs for only two-thirds of the mortgage amount.
11. On issue 11, the learned Subordinate Judge remarked that the
first defendant is not entitled to a joint decree along with the plaintiffs. As a matter of fact he has not come forward to urge for it either.
It is obvious that here the learned Subordinate Judge was wrong, as the first defendant did ask for a joint decree to be passed in favour of himself and the plaintiffs.
12. The decree drawn up in pursuance of this judgment first declared that the amount due to the plaintiffs for their two-third share on the mortgage including interest and costs amounted to Rs. 17,738-15-0 as calculated up to the 30th June, 1936, which was the date of the decree. Three months' time was given for payment. There was a direction that the defendants should pay into Court on or before the 30th day of September, 1936, the amount previously mentioned together with subsequent interest, with a further direction as to interest on the aggregate sum from 30th September, 1936, till realisation. The decree then proceeded to provide in paragraph 2, sub-paragraph (it), (leaving out the immaterial portions)
that on such payments . . . the plaintiffs shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendants...and the plaintiffs shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiffs.
Paragraph 3 of the decree stated that in default of payment as aforesaid, the plaintiffs may apply to the Court for a final decree for the sale of the mortgaged property. Paragraph 4 dealt with the application of the sale proceeds, and paragraph 5 reserved to the plaintiffs the right to apply for a personal decree if the amount realised by the sale should be insufficient to pay the plaintiffs in full.
13. Neither the first defendant Kanakasabai nor the mortgagor's son filed an appeal against that decree and judgment; nor did either of them file a memorandum of cross-objections though they had the opportunity of doing so when the 12th defendant filed an appeal in the High Court impleading them as respondents.
14. It appears that the amount due to the decree-holders in O.S. No. 15 of 1935 was deposited into Court by the fourth defendant in the present suit who purchased some of the hypothecated properties.
15. The present suit is by Kanakasabai, the eldest son of Perambala and the first defendant in the previous suit, for recovery, by sale of the hypotheca, of Rs. 9,530 being one-third share of the amount due on the mortgage deed of 26th January, 1920. Kanakasabai's younger brothers are impleaded as defendants 1 and 2 and the mortgagor's son as the third defendant. Defendants 4 to 8 are subsequent alienees. The suit was first filed in forma pauperis and was numbered as O.S. No. 13 of 1943. There was a civil revision petition to this Court challenging the correctness of the order granting leave to the plaintiffs to sue in forma pauperis. By an order made in an interlocutory application for stay during the pendency of the revision petition the Court below was directed to go into the question whether the suit was barred by reason of the judgment and decree in O.S. No. 15 of 1935. The lower Court held on 11th November, 1943, that it was so barred and relying on that finding, Byers, J., allowed the civil revision petition and set aside the order permitting Kanakasabai to sue in forma pauperis. Kanakasabai thereupon paid the necessary court-fee, and the suit was then numbered as O.S. No. 22 of 1944. The fourth defendant was the contesting defendant and he contended that the present suit is barred in consequence of the decree and judgment in O.S. No. 15 of 1935 and also by reason of the order, dated 11th November, 1943, in O.S. No. 13 of 1943. These objections were overruled by the lower Court but are again urged in this appeal on behalf of the fourth defendant who is the appellant.
16. The second of the objections may be shortly dealt with. The contention is that O.S. No. 22 of 1944 is merely a continuation of O.S. No. 13 of 1943 which commenced when the plaint was filed in forma pauperis on 26th September, 1942, and that the order, dated 11th November, 1943, passed in the course of the suit is res judicata in the later stages of the same suit and that it was not open to the Subordinate Judge to hold as he has now held contrary to the order, dated 11th November, 1943, that the decree and judgment in O.S. No. 15 of 1935 constitute no bar to the maintainability of the present suit. But if the Judgment under appeal is assailed on that ground it would be quite open to the respondents to show in the present appeal itself that the order of 11th November, 1943, is itself wrong. Mr. Muthukrishna Aiyar, advocate for the appellant, therefore conceded, and in our opinion rightly, that the second objection has no independent existence and that the real question to be decided is whether the first plaintiff lost his right to recover his share of the mortgage amount in consequence of the decree and judgment in O.S. No. 15 of 1935, the appellant's contention being that the plaintiff so lost it. It is pointed out on behalf of the appellant that Kanakasabai, his co-mortgagees and the mortgagor were all parties to that suit, and it is argued that if Kanakasabai's rights were not properly safeguarded by that judgment and decree he should have appealed therefrom and got them set right, and not having done so, he is now precluded from pursuing his rights, which, according to the argument, had to be put forward and provided for only in that suit.
17. In support of this argument two lines of decisions are relied upon. The first group deals with the frame of a suit by one of several co-mortgagees to enforce the mortgage when his co-mortgagees are not prepared to join him as plaintiffs, the constitution of such a suit as to parties, the relief to be prayed for, the court-fee payable on such a plaint and the value for purposes of jurisdiction of a suit so.framed. The leading case in this regard is the decision of the Privy Council in Sunitibala Debi v. Dhara Sundari Debi Ghowdhurani . In that case there was a mortgage of an estate to secure two sums of Rs. 80,000 respectively payable to two mortgagees. One of the mortgagees sued on the mortgage impleading the mortgagor, the other mortgagee and a prior mortgagee of the estate asking for payment of Rs. 80,000 due to her with interest and the sale of half of the mortgaged property. The High Court of Calcutta held that it was not possible for the plaintiff to obtain partial relief upon such a mortgage and granted permission to the plaintiffs to make the necessary amendments to the plaint and sent the order back for rehearing after the amendments were made. The Privy Council first held that the mortgage clearly effected the conveyance of the estate to the mortgagees as tenants in common and that it was not a mortgage to each mortgagee of a divided half but a conveyance to them of the whole property. Dealing with the case on that footing, the Privy Council stated as follows as to how a suit is to be framed in regard to such a mortgage:
Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage-decree, which would provide for all the necessary accounts and payments, excepting that there could be no judgment for a sum of money entered as between the mortgagee-defendant and the mortgagor. So far, therefore, as this appeal depends on maintaining the correctness of the form of the proceedings, it must fail. The proceedings were wrong in form, but were capable of being amended so as to constitute a properly framed suit. It was within the competence of the Court, to make such an amendment, and indeed it was their clear duty to do it, if thereby delay and expense would be avoided. In their Lordships' opinion, the amendment of the plaint as directed by the High Court is not appropriately worded and they consider that the trial Judge should on the rehearing of the suit make such amendments as may be necessary and proper.
The decision in Kailasa v. Sundaram : AIR1942Mad205 took the matter one step further. It first affirmed the proposition that one of several co-mortgagees who are in the position of tenants in common can sue to recover his own share of the mortgage provided that he makes his co-mortgagees defendants if they refused to join him as plaintiffs relying for this purpose on the decision in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani and on the decision of the Madras High Court in Atchamma v. Subbarayudu (1903) 15 M.L.J. 496. The question of the Court-fee payable in and the jurisdictional value of such a suit was then considered. While dealing with this question it was pointed out that a co-mortgagee suing alone for his share must ask for the preliminary mortgage decree in respect of the entire amount and that a proper decree in such a case should provide for all the necessary accounts and payments although a defendant mortgagee could not ask for judgment in his favour. This can only mean that the plaintiff must ask the Court to decide what is due on the mortgage as a whole and to fix a period of redemption of the mortgaged property in its entirety, that there can be no redemption in part and that the plaintiffs cannot get his share until the mortgagor has paid into Court what he owes on the mortgage or the mortgaged properties have been sold under the preliminary decree. The learned Judges therefore concluded:
In these circumstances it seems to us that the primary claim can only be taken to be the enforcement of payment of the full mortgage debt, which means that the plaint must be stamped accordingly.
As a corollary they further held that the proper Court to try the suit is the Court having the necessary pecuniary jurisdiction to entertain a suit of the value of the entire mortgage. The question as to what would be the proper course for a mortgagee defendant to take to recover his share of the moneys brought into Court as the result of a suit by a co-mortgagee was left open for future decision.
18. The case in Matilal Datta v. Bejoy Lal Chakrabarti I.L.R. (1943) Cal. 59 which was next cited on behalf of the appellant followed the decision of the Privy Council in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani and emphasised that the preliminary decree must specify the entire amount due on the mortgage as at the date of grace and not merely what is found due on the plaintiff's share at that date and direct the sale of the entire mortgaged premises in default of payment of the same. How the rights of the parties are to be worked out if the mortgagor pays into Court the total amount found due by the preliminary decree or if he defaults in making the said payment and there is consequently a sale of the mortgaged property was considered in detail. It is pointed out that if the sale fetches a price which is insufficient to recover the amount of the peliminary decree the plaintiff mortgagee will be paid only pro rata and that he can obtain a decree under Order 34, Rule 6, for the balance of his dues provided that he is otherwise entitled to such a decree. In regard to the rights of the mortgagee defendants the learned Judge made the following reservation:
Whether such co-mortgagees would be able to withdraw their share in the surplus sale proceeds by applications in that suit on payment of proper Court fees, or will have to institute suits for the purpose is a point on which there is divergence of opinion (see for instance Lachmi Narain v. Baburam 1935 All.L.J. 749 : 154 Ind.Cas. 437 and Seth Bansiram Jashamal v. Gunnia Naga Iyer : AIR1930Mad985 On that question we do not express any opinion, as it is not necessary at this stage.
On the question of the Court fee payable on a plaint by one of several co-mortgagees the Calcutta High Court held in the above decision differing from the view taken in Kailas v. Sundara : AIR1942Mad205 to which however they made no reference, that it is sufficient if Court fee is paid on the plaintiff's share of the mortgage amount. This decision however emphasised that it is one of the essential conditions of such a suit that the plaintiff must ask for the usual mortgage decree which must provide for all necessary accounts and payments in respect of the whole of the mortgage debt, that is to say, there must be a prayer for sale of the entire mortgage premises, if the mortgagor failed to pay into Court within the period of grace the amount that may be found due in respect of the entire mortgage debt.
19. The appellants also cited the case in Ram Sarup v. Kunjilal 1935 All.L.J. 198 and Ramchandra Iyer v. Sivarama Iyer (1936) 44 L.W. 502. In the former case a Bench of the Allahabad High Court held that one of several mortgagees cannot maintain a separate suit for recovery of his share of the mortgage debt even though he may abandon his security. In the course of their judgment they observed that,
As regards a suit brought by one of several mortgagees the point is well settled in view of the pronouncement of their Lordships of the Privy Council in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani the only proper course is for the co-mortgagee to implead the other mortgagees as defendants and sue for a decree for the entire amount on the sale of the entire mortgaged property. He cannot get a decree for his share of the mortgage debt or a sale of a part of the mortgaged property. It seems to us that the same principle applies even where one of the mortgagees chooses to abandon the security.
In our opinion this decision is somewhat inconsistent with the decision of the Privy Council which while insisting that the co-mortgagee should be impleaded and that a decree for the fixation of the entire amount and its realisation by a sale of the mortgaged property should be asked for, still ruled that the plaintiff can get a decree for his share of the mortgage. It is true that a part alone of the mortgaged property cannot be sold and also that in order to work out the right of the plaintiff in such a suit the entire amount due on the mortgage should be first ascertained. It is however open to the Court to direct payment out to the plaintiff of his part of the mortgage amount and in fact, that is all that could be done according to the Privy Council decision as no decree can be passed in favour of the co-mortgagee defendant for his share of the mortgage amount.
20. The decision in Ramachandra Aiyar v. Sivarama Aiyar (1936) 44 L.W. 502 is by a single Judge of this Court and purports to follow the decision of the Allahabad High Court just referred to. There are certain observations in this judgment with which we are not in agreement. It was pointed out in Kailas v. Sundra : AIR1942Mad205 that they are open to criticism. We therefore deem it unnecessary to discuss it any further.
21. On behalf of the respondent Mr. Viswanatha Sastri cited the decision in Lachminarain v. Baburam 1935 All. L.J. 749 : 154 Ind.Cas. 437. Except in one respect this decision did not carry the discussion very much further than Sunitibala Debi v. Dhara Sundari Debi Chowdhurani . Kailas v. Sundara : AIR1942Mad205 and Matilal Datta v. Bejoy Lal Chakrabarti I.L.R. (1943) 1 Cal. 59. Dealing with the the rights of a defendant mortgagee this decision laid down that he will not be entitled to be paid unless there is some amicable settlement between him and the mortgagor and that otherwise he will have to bring a suit against the mortgagor just as the other mortgagee and that if a sale of the property had already taken place his charge will fasten on the balance of the sale proceeds which is held by the Court as substituted security.
22. As is apparent from the above discussion it seems to us that the law as to how a suit by one of several co-mortgagees is to be framed is fairly clear. It is also clear that the judgment and decree in O.S. No. 15 of 1935 did not proceed on the basis on which they should have proceeded according to the above decisions, the most material deviation being that the amount that was declared to be payable was only the two-thirds that was due to the plaintiffs together with interest and costs and not as it should have been the entire amount due in respect of the mortgage. That the decree and judgment therefore proceeded upon a defective basis may be readily admitted but what we are really called upon to decide in this case is whether by reason of the defective character of the decree and judgment the first plaintiff's rights were extinguished as the appellant contends, or left unaffected as is contended on behalf of the respondents. The decisions we have so far dealt with are concerned only with pointing out how the plaint and the decree in a suit properly constituted and properly tried should run. None of them is of any help in deciding as to the consequences of a defective suit and a defective decree.
23. We are invited by the appellant to hold that since there was no provision in the decree in O.S. No. 15 of 1935 for the payment by the mortgagor of the entire amount due under the mortgage and there was a direction only that two-thirds of that amount should be paid, the claim as to the remaining one-third must be taken to have been wiped out. We do not think this necessarily follows. On a fair reading of the judgment and decree it seems to us obvious that the Court did not intend or purport to deal with the right of the present first plaintiff to recover his one-third of the mortgage amount. It was left out to be dealt with in future in a suit to be filed by him. The mere fact that this was not the best or even a proper way of dealing with the rights of the parties does not justify the conclusion that what the Court deliberately left out or reserved for future determination must be taken to have been negatived.
24. In support of his argument that the extinguishments of the first plaintiff's mortgage is the necessary though perhaps unintended result of the previous decree and judgment, Mr. Muthukrishna Aiyar, advocate for the appellant relied upon another line of decisions to which we shall immediately refer. The first of them is the decision in Kanhailal v. Jwala Dei 1896 A.W.N. 147 the headnote in that case runs as follows:
One of two joint mortgagees sued for her moiety of the mortgage debt and obtained a decree for sale of the whole mortgaged property. The other mortgagee would not join as plaintiff in that suit and was accordingly made a defendant. Subsequently the other mortgagee sued the mortgagor for recovery of his moiety of the mortgage debt by sale of the whole mortgaged property. Held that such a suit would not lie.
The material difference however between that case and the present one is that there was in our case no Court sale of the hypotheca as in the case with which the Allahabad Judges were concerned. It is therefore unnecessary to consider what the consequences would have been if there had been such a sale. It will be recalled that the fourth defendant, the purchaser by private sale of a portion of the hypotheca from the mortgagor paid off the amount due to the decree-holders in O.S. No. 15 of 1935 and a sale through Court was consequently unnecessary. In the events that have happened, the relevant paragraph of the decree is paragraph 2 (ii) which provides that on the payment of the amount previously specified the plaintiffs shall if so required, reconvey or retransfer the said property free from the said mortgage. The words ' the said mortgage ' may no doubt . be suggestive of the mortgage dated 26th January, 1920 in its entirety; but if regard is had to the fact that the plaintiffs were, by that very decree, declared to be entitled to a two-third share in the mortgage it would not be unreasonable to construe those words as indicative of the plaintiffs' interests in the suit mortgage. As the advocate for the respondents rightly points out, the plaintiffs could not convey anything more than what they had, namely, their two-third share in the mortgage.
25. The cases in Ellarayan v. Nagaswami Iyer : AIR1926Mad816 and Ex parte Fewings in re Sneyd (1883) 85 Ch.D. 338 were next cited on behalf of the appellant to support the argument that the rights put in suit in O.S. No. 15 of 1935 were merged in the judgment and decree and are no longer outstanding. In Ellarayan v. Nagaswami Iyer : AIR1926Mad816 there was a preliminary decree for sale on a mortgage. The mortgagor failed within the time fixed in the decree to pay up the amount due under the mortgage and a final decree for sale was passed. The mortgagee however did not execute the final decree and continued in possession. It was held that the mortgagor could not institute a suit for redemption against the mortagee, following the rule of res judicata laid down by the Full Bench in Vedapurati v. Vallabha Valia Raja (1901) 12 M.L.J.128 : 25 Mad. 300 . It was pointed out on behalf of the respondents that the correctness of the last mentioned decision was doubted in Viroopakshan v. Chembu Nayar (1937) M.L.J. 83 : I.L.R. 1937 Mad. 545 in view of a decision given by the Privy Council meanwhile in Ragunath Singh v. Hansraj Kunwar (1934) 56 All. 561 (P.C.). It seems to us unnecessary to discuss the implications of the decision in Vedapurati v. Vallabha Valia Raja (1901) 12 M.L.J.128 : 25 Mad. 300 or its correctness or the extent to which the decision in Ellarayan v. Nagaswami Iyer : AIR1926Mad816 can be sustained on its own reasoning and apart from its reliance on Vedapurati v. Vallabha Valia Raja (1901) 12 M.L.J.128 : 25 Mad. 300 . It is obvious that in the case in Ellarayan v. Nagaswami Aiyar : AIR1926Mad816 the right of redemption of the mortgagor was intended to be and was dealt with. It was directly the subject of adjudication. That being so, it was held that the rule of res judicata as pronounced in Vedapurati v. Vallabha Valia Raja (1901) 12 M.L.J.128 : 25 Mad. 300 barred a second suit in which again the mortgagor's right of redemption was sought to be brought into issue. As we have already observed, there was in O.S. No. 15 of 1935 no adjudication on the rights of the present first plaintiff which were deliberately left out of consideration.
26. In Ex parte Fewings, In re Sneyd (1883) 85 Ch.D. 338 a mortgagee sued his mortgagor on the covenant in the mortgage for the repayment of the principal sum with interest thereon. It was held that the mortgagee was, as from the date of the judgment, entitled only to interest at the judgment rate of four per cent and was not entitled to interest at the rate of five per cent as provided in the covenant, as the covenant became merged in the judgment. This again is a case where the right in question was dealt with by the judgment which altered the position of the parties as creditor and debtor into that of decree-holder and judgment-debtor with the necessary consequence that the contract rate of interest could no longer be claimed after the judgment was given. The case we are concerned with is wholly unlike the case in Ex parte Fewings, In re Sneyd (1883) 85 Ch.D. 338 because the rights that are now sought to be enforced are altogether outside the scope of the decree which was given in the previous suit.
27. On behalf of the respondents Mr. Viswanatha Sastri argued that the joining of a party to a mortgage suit in order to satisfy the requirements of the processual law does not necessarily mean or imply that the right of that party is concluded by the decree and he has cited by way of analogy the instance of a suit for sale by a first mortgagee impleading a puisne mortgagee, in which the decree usually provides for the payment, out of the sale proceeds, if there is to be a sale, firstly to the prior mortgagee and then to the extent of any surplus that may, remain to the second mortgagee. If the first mortgagee is paid outside Court the second mortgagee cannot execute the decree for the realisation of the amount due to him and must file a separate suit. It is however unnecessary to invoke any such analogy as the right of the first plaintiff was not the subject of even a declaration in O.S. No. 15 of 1935 and, in our opinion, it is not open to the mortgagor or to the fourth defendant who claims under him to refuse to abide by that judgment when it proceeded, even if it be erroneously, to leave the rights of the first plaintiff untouched.
28. The decision in Vijayabhushanammal v. Evalappa Mudaliar I.L.R.(1914) Mad.17. cited by the advocate for the respondents seems to us to be helpful. It was held in that case that there can be a severance of the interests of several mortgagees to a mortgage not only with the consent of the mortgagor as contemplated by Section 67(6) of the Transfer of Property Act, but also where such severance is effected by a decree of Court binding the mortgagor. Applying that principle it is claimed by the respondents that there was such a severance of the interests of the first and second defendants on the one hand and the first plaintiff on the other by the decree in O.S. No. 15 of 1935.
29. The argument on behalf of the appellant seems to us to import the consequences of a decree which should have been passed in accordance with the principles laid down in Sunitabala Debi v. Dhara Sundari Debi Chowdhurani and the other cases to which we have already adverted, into a case where the decree and judgment proceeded upon entirely different lines. The mere fact that neither the decree nor the judgment proceeded as they should have done, does not, in our opinion, ipso facto, lead to the extinguishment of those rights, which would no doubt have been extinguished if there had been a proper adjudication and if a proper decree had been drawn up. It seems to us that in such a case the rights of the parties fall to be decided in the light of and on an examination of the scope of the adjudication contained in the judgment and of the terms of the decree as it is actually worded.
30. We are not prepared to subscribe to the proposition that the right of a co-mortgagee defendant is extinguished automatically on the passing of a decree in favour of the plaintiff co-mortgagee irrespective of the nature of the judgment given and the language of the decree passed in it and irrespective of whether or not the right of the co-mortgagee was the subject of adjudication. There is, in our opinion, no principle or binding authority in support of such a proposition. We have therefore come to the conclusion, on an examination of the judgment and decree in O.S. No. 15 of 1935 and having regard to the payment of the said decree outside Court by the fourth defendant, that the right of the first plaintiff is in no way affected or extinguished.
31. We accordingly dismiss the appeal with costs of respondents 1 to 3 (the legal representatives of the deceased first plaintiff).