1. In 1879 first defendant hypothecated to plaintiff the lands in question in this suit by registered deed (Exhibit A) for Rs. 1,000. In default of payment within four years the deed provides that plaintiff 'shall take possession and enjoy the lands, this very bond being taken as a sale deed'. The deed contains a direct covenant by first defendant for payment of the mortgage debt, principal and interest. Plaintiff sued first defendant in Original Suit No. 116 of 1884 in the Vizianagram Munsif's Court for recovery of the mortgage debt from first defendant personally and by means of the mortgage property. It is admitted that none of the mortgaged lands are within the territorial jurisdiction of the Vizianagram Munsif. As against the land, therefore, plaintiff could have obtained no relief in that suit, and the District Munsif accordingly dismissed his suit so far as it related to the lands mortgaged. He also dismissed the suit for the principal of the mortgage debt, apparently on the ground that the mortgage was one by conditional sale and therefore no suit would lie for the mortgage debt, but he gave plaintiff a personal decree for the interest due on the ground that the bond expressly provided for it. He appears to have overlooked the fact that the bond contained an express covenant for payment of principal as well as interest.
2. In the present suit plaintiff prays in the alternative for possession of the mortgaged lands or for recovery of the principal of the mortgaged debt (Rs. 1,000) by sale of the mortgaged property. Second defendant is in possession of part of the mortgaged property under an alienation by first defendant. Defendants 3 and 4 are in possession of other parts of the lands claimed. Third defendant sets up a title to the lands in his possession as belonging to his karnam's mirasi. Fourth defendant disclaims all interest in the plaint lands and asks for costs. Both the lower Courts agree in dissmising the suit on the preliminary ground that it is barred by Sections 13 and 43 of the Civil Procedure Code. Plaintiff appeals.
3. In our opinion the lower Courts are in error in throwing out the suit on this preliminary ground. Clearly the matter is not res judicata within the meaning of Section 13 of the Code, for the District Munsif's Court of Vizianagram was not a Court of jurisdiction competent to try the suit so far as it relates to the mortgaged lands. Neither do we think does Section. 43 bar the present suit. It is pressed on us by the learned Advocate-General for second defendant that plaintiff must be taken to have intentionally relinquished that portion of his claim relating to the lands, so as to get the personal decree, which alone the Munsif could give him. But it appears to us that the facts as to plaintiff's conduct in the former suit cannot bear that construction. So far from relinquishing that part of his claim relating to the land he sued for enforcement of the mortgage by sale of the mortgaged lands, and persisted in his claim until the hearing, when it was disallowed. He had a right to sue the mortgagor for the mortgage-debt in the Court within whose jurisdiction the mortgagor resided, and the fact that he erroneously claimed in that suit relief against the lands which that Court had no jurisdiction to give him does not, in our opinion, bring him within the bar of Section 43 of the Code.
4. We must reverse the decrees of the lower Courts and remand the suit to the Court of First Instance for disposal on the issues which have not been tried. Respondent must pay appellant's costs of this second appeal and the Lower Appellate Court. Costs in the Court of First Instance to be dealt with in the revised decree.