1. The case in which this appeal arises is as follows: On the 21st November 1889, one Mohabir Singh mortgaged a portion of a certain mouzah to one Jagi Lal for Rs. 250. On the 8th October 1890 one Jugdeo Narain executed a mortgage relating to 4 mouzahs, including the one mortgage before to Jagi Lal for the sum of Rs. 598. This mortgage was executed and registered and eventually came into the possession of the mortgagee. A question has been raised at a subsequent period as to whether any consideration had passed. After this on the 16th February 1891, Jugdeo Narain again mortgaged two of the four mouzahs in question including the subject-matter of the first mortgage to the plaintiffs for Rs. 275. So matters stood until either July or September in 1893 when Government revenue falling into arrears the property was put up for sale and was purchased by one Joti Lal Sahu, defendant No. 1 in the present suit and the only defendant who has entered appearance. Under these circumstances the plaintiffs sought to execute their rights under their mortgage of the 16th February 1891 by bringing a suit against the sons of the mortgagor. The present defendant No. 1 was joined as a necessary party to that suit by reason of his purchase at the revenue sale, and he set up the payment of Rs. 1,088 which he professed to have made to the mortgagee of the two mortgages of 1889 and 1890 in order to clear the estate which he had bought from previous incumbrance. A suit was brought before the Muhsif and on the matter being tried out the plea set up by the present defendant No. 1 failed and the plaintiffs succeeded in getting 'this decree. On an appeal being brought, this decree was set aside and the property being brought to sale under the mortgage was bought subject to the incumbrance of Rs. 1,088 by the present plaintiffs, who thereupon ousted the defendant No. 1 from possession. In order to vindicate his right the defendant No. 1 then sued the plaintiffs before the Sub-Judge for payment of Rs. 1,088 in respect of the mortgage of 1890 and Rs. 3,000 as regards the money paid in respect of the mortgage of 1889 enforcing the charge which had been found in his favour in the previous suit, and it was held that the present plaintiff was liable to the defendant No. 1 for Rs. 1,088 and as regards the Rs. 3,000 it was found on the facts that the contention put forward by the present defendant No. 1 was baseless. The decision as to the Rs. 1,088 was given in accordance with the suit No. 227 which had been originally brought before the Munsif, the Court holding that this matter had previously been in issue between the parties and had been decided, and was, accordingly, res judicata under Section 13 of the old Code. This decision was affirmed on appeal, and the plaintiff now sues to have it declared that the original recognition of defendant No. 1's right to the Rs. 1,088 was obtained by fraud and to have been restrained from executing the decree in his favour obtained in the present Suit. This suit was dismissed by the lower Court on the ground of res judicata and now comes before us on appeal. The first point raised before us is that the first decision, that in appeal from the Munsif's decree, was made without jurisdiction the matter in issue being in part the claim to Rs. 1,088 set up by the present defendant No. 1 in the previous suit which was beyond the jurisdiction of the Munsif and consequently beyond the jurisdiction of the appellate Court whose judgment constitutes res judicata.
2. We are not now concerned with considering whether the Munsif had or had not jurisdiction in Suit No. 227 because we take it to be the established law that even if the former Court was in error in point of law the matter which such Court adjudicates on is, for the purposes of the second Court, res judicata. The principle was denied in the case of Parthasaradi Ayyangar v. Chinna Krishna Ayyangar 5 M. 304 but this decision has been the subject of several decisions in this Court in a contrary sense. For this purpose we need only refer to the decision in Bishnu Priya Chowdhurani T. Bhaba Sundari Debya 28 C. 318. The matter of the present defendant No. 1's claim for allowance in respect of the Rs. 1,088, therefore, which was raised in the second suit, was rightly considered by the Court as being res judicata. The result is that, as far as that point is concerned that the plaintiff's prayer in the present suit, the plaintiff in the former should be debarred from executing this decree, fails, and he is not entitled to substantiate his claim that he puts forward that the decree by the original appellate Court was procured by fraud.
3. We then come to the second point raised by the plaintiff, this is, that his mortgage covers only two properties, that one of the mortgages in respect of which the defendant says that he has made payment of Rs. 1,088 covers four mouzahs, that taking the proportionate value of the properties the sum of Rs. 1,088 ought to be reduced to a very much smaller sum, and that he is entitled accordingly to apportionment, to see what amount of the Rs. 1,088 is duly chargeable to the properties in his hands. Whether he is entitled to this relief or not depends on whether he could and ought to have raised this matter in the previous suit in which he was defendant, namely, No. 14 of 1905, the second suit which we have referred to. The question thereunder arises, what was the nature of that suit. The pleadings are not before us but the decree seems to set out sufficiently the contention of the parties to enable us to form an opinion of what his suit really was. It was in terms a demand that the present plaintiff should pay Rs. 1,088 and Rs. 3.000 and that on failure of payment of those sums the present defendant No. 1 should be put in the possession of the land in question. These claims contain the essence of a suit for foreclosure. The then plaintiff was, as a matter of fact, possessed of the rights of both a mortgagor and a prior mortgagee in the property but the rights he was enforcing were those of a mortgagee. The claim, therefore, seems to be one for foreclosure and the decree is certainly one for foreclosure, namely, it is ordered that the then defendants are to pay so much money within a certain time and that failing to pay that money, the plaintiff will get possession of the disputed land. This is the essence of a decree for foreclosure. Under these circumstances it was for the then defendant the present plaintiff, to plead that even if he was liable at all on the facts of the case, the amount for which he was liable was misstated for the reasons given, namely, that he is only in possession of the two properties charged and not of the others. This plea he did not take either expressly or so far as we can see by implication. He could have taken it and if it was there for him to take, we consider that he ought to have taken it.
4. The result is that we consider that he cannot under explanation 2 of Section 13 raise the contention in the present suit. This contention of the appellant, therefore, fails.
5. The appeal is, accordingly, dismissed with costs.