1. In the former suit the then plaintiff set out the prior mortgage of the 6th defendant but did not make any allegation as to the amount, if any, then due under it nor ask that the sale should be made subject to it or free of it. The District Munsif found the amount due to be Rs. 178 on an issue raised by the 8th defendant in the suit, but on other grounds dismissed the suit. The plaintiff appealed to the District Judge but did not in his grounds of appeal take any objection to, or make any mention of the finding on the question of the prior mortgages, and the decree of the District Judge is silent upon the point.
2. The finding of the District Munsif who dismissed the suit cannot be incorporated by implication into the decree of the District Judge. When the suit was dismissed, the finding ceased to have any effect and we must take it that the decree of the District Judge did not dispose of or decide any question in regard to the prior mortgages. Srinivasa Bad Sahib v. Yamunabhai Ammal 29 M. 84 : 16 M.L.J. 50 and C.M.S.A. No. 75 of 1906 are authorities for the position that the decree for sale though silent as to the prior mortgages must not be under stood to have negatived them. In those cases the prior mortgagee was a party and though the amount of the prior mortgages was expressly admitted, the same principle is applicable in the present case. Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 where the plaintiff disputed the existence of the prior mortgage and asked for a sale free of all incumbrances, stands on a different footing: vide Mahabir Pershad Singh v. Prabhu Singh 9 C.L.J. 78; 3 Ind. Cas. 686.
3. We reverse the decrees of the lower Courts and remand the suit to the District Munsif for disposal according to law. Costs will abide the result.