1. The appellant has raised for the first time in this Court the contention that the suit was barred by Section 47 of the Code of Civil Procedure. It has been objected that I should not allow that plea to be raised at this stage, but this Court has on other occasions allowed, it to be raised [see Jainulabdin Sahib v. Krishna Chettiar : AIR1921Mad420 and as it is a pure matter of law affecting the very validity of the suit, it is a point of jurisdiction that must be decided.
2. It is clear from the judgment of the trial Court that the defendants Nos. 2 to 4 were parties to the original mortgage suit and were exonerated by the then plaintiff mortgagee. They are, therefore, 'parties to the (mortgage) suit' within the meaning of Section 47 of the Code of Civil Procedure. (See Ramaswami Sastrulu v. Kameswaramma 23 M. 361 : 10 M.L.J. 126 Sethu Konar v. Ramaswami Konar : AIR1926Mad484 and Medisetti Venkataswami v. Kunchalla Chidambaram 45 Ind. Cas. 671 : 23 M.L.T. 206 Any claim by the mortgagee to enforce his mortgage decree against defendants Nos. 2 to 4 would have to be put in under Section 47 of the Code of Civil Procedure and should not be by suit and the present plaintiff, his successor-in-title, cannot be in any better position. The proper procedure, therefore, was by an execution application and not by way of suit, and the present suit in its present form is not maintainable.
3. Inasmuch as the point is only raised here now, I am not prepared to dismiss the suit outright. I permit it to be converted into an application under Section 47 of the Code of Civil Procedure and inasmuch as fresh questions of limitation, conversion into a suit, etc, may arise, I remit it to trial Court for fresh hearing.
4. Costs up to date will abide the result.