1. This is a suit on a mortgage said to have been executed by a lady of the name of Sreemati Bhubenaswari Debi. The plaintiff-appellant is the alleged mortgagee, the first and second defendants are the reversionary heirs in respect of the property and the third defendant is the person to whom they sold the property, said to have been mortgaged, after they had inherited the same by right of reversion.
2. The first Court decreed the suit as against all the three defendants. There upon there was an appeal by the third defendant, which proved successful. The lower appellate Court found that there was no consideration for the mortgage and that, therefore, there was no valid mortgage, and decreed the appeal and dismissed the suit.
3. No question arises in this appeal as regards the third defendant who has purchased the property, for as regards him it is simply a question of fact, namely, whether there was a valid mortgage by reason of want of consideration. The point which has been argued before me is that on appeal by the third defendant, it was not open to the lower appellate Court to dismiss the suit as against the first and second defendants who, it appears never' entered appearance nor filed a written statement, and one of whom gave evidence on behalf of the plaintiff. The only question, therefore, I have to decide is whether or not the case comes within the provision of Order XLI, Rule 4, which provides that 'where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plain tiffs or defendants, as the question may be.' The question then is whether the first Court proceeded upon any ground common to all the defendants, in this case, and whether there is a common ground, must be determined in each case upon the nature of the decree given and of the grounds upon which that decree proceeded. It is argued by the learned Vakil who appears on behalf of the appellant that there was no such common ground in this case, and he supports his arguments by contending that the decree is one which is capable of division, for it is urged that the liabilities of the first and second defendants and of the third defendant are separate and the decree is capable of division as regards such separate liabilities. As against the third defendant, he contends that the liability is a liability in respect of the property, which he purchased, and as regards the first and second defendants there is in addition to a liability against the property in the event of their being a valid mortgage, a liability which subsists against them personally and by way of execution against such properties other than the mortgaged property, which they may possess. This argument, in my opinion, overlooks the fact that though the relief against the first and second defendants is of a more extensive character, the right to that relief and the decree, which is given by the first Court affirming the right to relief proceed upon the existence of a valid mortgage. In other words, the liability as against all the defendants depends upon a common ground, namely the existence of a valid and binding mortgage by Sreemutty Bhubenswari Debi. What then, in short, I am asked to say is that there was a valid mortgage as against defendants Nos. 1 and 2, there being no objection, thereto, on the, ground of want of consideration. At the same time, the lower appellate Court is to hold, that as regards the defendant No. 3 there was no mortgage. This clearly cannot be done,-and I am of opinion, therefore, that the decree appealed against proceeded upon a common ground and that the lower appellate Court was right in reversing the decree as against the first and second defendants, when it found on the appeal of the third defendant that there was no valid mortgage.
4. I have been referred to the case of Sriram Ghatak v. Brajamohan Ghosal 11 W.R. 449 : 3 B.L.R. App. 41. It does not set out the facts but they can be gathered from the same case reported in Sriram Ghatak v. Brajamohan Ghosal 11 W.R. 449 : 3 B.L.R. App. 41. From the head-note of that case it appears that the bond there in question was executed by two persons, and the question in issue was one of execution and want of, consideration. It is, of course, quite clear that, in a case of that kind it would be open to find that the bond was executed by one defendant, yet was not: executed by, the other and that consideration was received by one or the other, for the document executed by him. In the present case the document was executed by Sreemutty Bhubenswari Debi alone, and the question arises as regards the receipt of consideration by her alone. The receipt of, consideration has been negatived and it has been found as a fact that no consideration passed.
5. Therefore, in these circumstances, the appeal must be dismissed with costs.