1. This is an appeal against the decree of the Subordinate Judge of Chicacole for sale of the hypotheca of the family of the appellants and their father the first defendant.
2. The suit mortgage deed, Ex. P-1, was executed on 16th June, 1928, by the first defendant alone. Prior to that, by Ex. D-1, on 23rd August, 1922, the hypotheca was mortgaged in favour of one Vedula Jagannatham Bhukte. On his mortgage he filed O.S. No. 34 of 1934 for sale of the hypotheca. He impleaded not only the first defendant but also his sons, defendants 2 to 5, who also executed the mortgage through their father as guardian. In any case, they had to be impleaded under Order 34, Rule 1 as persons having interest in the secured properties. The present plaintiff was also impleaded, as required by Order 34, Rule 1 as a subsequent mortgagee. He filed a written statement alleging that the mortgage in that suit was not true and that his mortgage was executed for purposes binding on the present defendants 2 to 5, who were also defendants 2 to 5 in that suit. The first defendant was ex parte throughout. Defendants 2 to 5 filed written statements and thereafter remained ex parte. In that suit an issue was framed--as one had to be framed.
Whether the mortgage bond in favour of the sixth defendant, dated 16th June, 1928, is true and binding on defendants 1to 5 and what is the amount due under the same?
3. The learned Judge considered the evidence adduced on that issue by the sixth defendant and found that the amount due under Exhibit I in favour of the sixth defendant was the principal amount of Rs. 30,000 and interest at the bond rate from its date till the date of payment fixed in the decree. The learned Judge held:
It is obvious that Ex. I is supported by consideration as recited therein, and all the amounts were borrowed for valid necessities and therefore binding on defendants 1 to 5.
4. In accordance with this finding a decree was drawn up in the manner required by Order 34, Rule 4(4) and in the words found in form No. 9 (Appendix D). The clause of the decree with which we are concerned is:
That if defendant No. 6 pays into Court to the credit of this suit the amount adjudged due to the plaintiff but defendants 1 to 5 and 7 to 9 make a default in the payment of the said amount, defendant No. 6 shall be at liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under Clause 4 above).
5. A provision had also been made earlier in the decree for payment of any balance, after the dues of the plaintiff in that suit had been met, to the sixth defendant or other persons entitled to receive the same.
6. It is thus seen that this decree, which is in accordance with the mandatory terms of Order 34, Rule 4(4), provides for the payment to the sixth defendant, after the plaintiff had teen paid his dues, of any amount remaining over and above the amount found due to the plaintiff and for execution of that decree by the sixth defendant against defendants 1 to 5 for the amount found due to him, as well as for the amounts paid by him to the plaintiff in the same manner as if he had been the plaintiff himself. The passing of the final decree in that suit was delayed till 1943, largely on account of the pendency of applications to scale down the decree. If the present plaintiff had waited until then to secure his rights against the defendants 1 to 5, his right to bring a suit against defendants 1 to 5 would have lapsed; because the mortgage debt became payable on 16th June, 1929. The question that arises in this appeal is whether the decisions between the present plaintiff and the defendants 1 to 5 in O.S. No. 34 of 1934 operate as res judicata in the present litigation.
7. It is not denied by the learned advocate for defendants 1 to 5 that the question of the amount due under the mortgage bond and its binding nature were in conflict between the sixth defendant on the one hand and defendants 1 to 5 on the other; but it is argued that it was not necessary to determine the conflict between the defendants in order to give the plaintiff in that suit the remedy to which he was entitled, and that therefore the conditions laid down by their Lordships of the Privy Council in Munni Bibi v. Tirloki Nath for the operation of res judicata between; co-defendants are not satisfied. It is said that the only right that the sixth defendant had in the former suit--if his claims was true--was a right to redeem the plaint mortgage, and that therefore all that it was necessary to determine in O.S. No. 34 of 1934 was whether the present plaintiff had such a right, i.e., whether any mortgage amount, however small, was due to the present plaintiff. It was not necessary from the plaintiff's point of view, it is argued, to ascertain the actual amount due under the mortgage and to decide the question whether the mortgage was binding on defendants 2 to 5. That is true; but the argument overlooks the mandatory provisions of Order 34, Rule 4(4). That sub-rule says that where, in a suit for sale--subsequent mortgagees--are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in form 9--of Appendix D. It is clearly the object of the Legislature in this sub-rule that not only the rights of the prior mortgagee, but also those of the subsequent mortgagees, should be worked out, in order to finally determine the claims on the property which is the subject of the suit. As already pointed out, it provides an additional right on the part of the subsequent mortgagee to execute the decree as the plaintiff himself could, provided that he pays off and redeems the mortgage of the plaintiff. No decree could therefore be passed in favour of the plaintiff alone without also determining the amount due to the subsequent mortgagees. In the words of the Privy Council in Muni Bibi v. Tirloki Nath (1931) 61 M.L.J. 196 : L.R. 58 IndAp 158 : I.L.R. 53 All. 103 (P.C.) the determination of the amount due to the sixth defendant 'was necessary in order to give the plaintiff the reliefs which he claimed.'
8. It is further argued that even though Order 34, Rule 4(4) may require that the amount should be determined, it was not necessary, in order that the plaintiff should get a decree for the relief which he claimed, to determine whether the subsequent mortgage was binding on the junior members of the family. We are how-ever satisfied that Order 34, Rules 1 to 4 require that the interests and rights of all parties to the mortgage suit should be completely determined. Even if the sixth defendant redeemed the plaintiff's mortgage, he could not proceed against the hypotheca if the mortgage was binding only on the father; for only his share of the hypotheca could then be brought to sale. If, after sale by the plaintiff, a certain amount remained, the subsequent mortgagee would only be permitted to take the mortgagor's share of what remained and not the whole of it; whereas if the mortgage were binding on the junior members of the family, he would be entitled to the whole of the remainder. It was because the learned Judge realised that it was necessary to determine this question that he raised the issue set out above and decided it. It is true that defendants 2 to 5 remained ex parte and failed to appear and let in evidence on this issue; but the question of res judicata cannot be effected by this circumstance. In view of our finding given above it is unnecessary to reconsider in this appeal whether the items of considerations shown in the mortgage-deed were binding on the junior members of the family.
9. The appeal is dismissed with the costs of the first respondent.