1. The only matter which has been discussed before us relates to issue No. 4, There was a suit in the Court of the second Munsif at Diamond Harbour numbered 1387 of 1909, in which the landlord defendants set up a paramount title, contending that the decree which they had obtained against their tenant Shibchunder Das was a rent-decree and not a money decree. Defendants Nos. 3 to 5, purchasers, now contend that the right, title and interest of the mortgagor, defendant No. 1, was purchased by them and, therefore, they have a right to redeem the mortgage. In the suit referred to, the defendants repudiated such right and set up a title adverse to that of the mortgagor and the mortgagee. It is now argued that although upon the assertion of such paramount title they were dismissed from that suit, yet the case was not decided in their presence and that it cannot be held that it is binding upon them and that both the trial Court and the lower Appellate Court were wrong in applying the Privy Council case of Nilakant Banerji v. Suresh Chandra Mullick 2 C. 44 : 21 A. 17 : 9 Ind. Jur. 439 : 4 Sar. P.C.J. 685 : 6 Ind. Dec. (N.S.) 281 (P.C.).
2. It has been strenuously argued before us that there is no binding decision in Suit No. 1387 of 1908 so far as the present defendants are concerned. Although they had asserted a paramount title, an application was made by the plaintiffs in that suit that the defendants were not necessary parties to the action and accordingly they were dismissed from the suit, and the decree which followed, being in their absence, was not binding upon them. It was not res judicata This contention is to our mind unsound They had been made parties to the suit They asserted paramount title and did not disclose to the Court that they had any claim as the purchasers of the equity of redemption. It was open to them to plead that fact in the alternative. That was the proper suit for the trial of that question. Having regard to their written statement, the Court before which the question arose could not have done anything else but dismiss them from the suit. It appears from the judgment in that case that the whole of the evidence was taken, and after the case was closed, arguments of both sides were heard and it was after such argument, an application was put in by the plaintiffs asking that having regard to the plea of the defendants they should be dismissed from the suit, and they were adoringly dismissed. It is said that this was not an adjudication by the Court. We think it was. There is undoubtedly a little distinction between the Privy Council case above referred to and the present case. But we do not think that makes any difference. The Privy Council said in Nilakant's case 2 C. 44 : 21 A. 17 : 9 Ind. Jur. 439 : 4 Sar P.C.J. 685 : 6 Ind. Dec. (N.S.) 281 (P.C.), 'It may... be mentioned that the case is a little confused by the introduction of Section 13 of the Code of 1877. That section has nothing to do with this case. This is not a question whether a person is bound by a decree made in some other suit. The question is whether he is bound by the decree made in this very suit of l867 in which the plaintiff bought; the land, and whether after that decree was passed his rights were not entirely gone.' It further said: 'It is not the case that the equity of redemption is affected by a decree in a suit to which the owner of it is not a party. He was a party to the suit and he... insisted that the Court should dismiss him and treat him as if he were not a person who could be put to redeem at all.' In that case the owner did something more, but that does not affect the question before us. We think that inspite of the distinction which is sought to be made, the principle laid down by the Privy Council is applicable to this case. In addition to that, we find that in the present case, the written statement of the defendants does not state that they want to redeem. They have set up the same case which they had set up in the previous suit.
3. The 4th issue is framed in this way: 'Did the defendants Nos. 3 to 5 repudiate any right of redemption in respect of the property in suit?' In their written statement they clearly asserted a paramount title and repudiated any right to redeem. It does nor appear that at any stage they offered to redeem. A mere question of law appears to have been discussed by them in the first Appellate Court without any prayer that they might have leave to redeem. It is now for the first time they say that they are so prepared. We do not consider this a bona fide prayer.
4. Our attention was drawn to the case of Rebati Mohan Das v. Nadiabashi De 44 Ind. Cas. 521 : 22 C.W.N. 543 at p. 546 : 28 C.L.J. 256, in which a person wanted to come in as a party but his application was refused. That case is clearly distinguishable from the present one.
5. We think that both the Courts below were right with regard to this matter and this appeal must, therefore, be dismissed with costs.