1. The subject-matter of the litigation which has given rise to this appeal is one-fourth share of Mouza Ordewa. The plaintiffs-appellants base their title on a mortgage-deed executed by the owners on the 27th February 1S93. 'The defendant founds his title on a subsequent purchase at a sale held under the Public Demands Recovery Act. The case for the plaintiffs is that the mortgagee enforced his security and obtained a decree on the 16th December 1898, which was subsequently made absolute on the 30th June 1899; thereafter the decree was assigned in their favour on the 19th May 1901. The decree was executed in due course and the property purchased by the plaintiffs. The defendant resisted the claim substantially on the ground that the mortgage was fictitious and that, consequently, the plaintiffs had not acquired any valid title to the property.
2. In the Court of first instance, the Subordinate Judge held that the mortgage, bond relied upon by the plaintiffs was a genuine transaction. He also found that the consideration for the assignment of the mortgage-decree had been sufficiently proved. In this view, the Subordinate Judge made a decree in favour of the plaintiffs. Upon appeal, the District Judge has reversed that decision. In, an elaborate judgment he has held that the assignment in favour of the plaintiffs was fraudulent, and, so far as we can gather, he was also inclined to doubt the genuineness of the mortgage transaction. The plaintiffs have now appealed to this Court and on their behalf it has been contended that the judgment of the District Judge is vitiated, because his conclusions are based upon the decision of a question, namely, the true nature of the assignment of the mortgage-decree, which was neither raised in the written statement nor is covered by any of the issues. In answer to this argument, it has been contended on behalf of the defendant that the findings of the District Judge are conclusive and cannot be questioned in second appeal. An attempt has also been made to support the decree of dismissal made by the District Judge on the ground that inasmuch as the suit had been instituted without the previous payment of the costs incurred by the defendant in an earlier litigation relating to the same subject-matter which was with-! drawn by the plaintiffs, the suit was not maintainable and was liable to be dismissed on that ground alone. It is necessary to consider, in the first place, the validity of this objection.
3. It appears from an examination of the record that in the previous suit, the Court; granted the plaintiffs leave to withdraw from their suit, with liberty to bring a fresh suit on the same cause of action, provided the defendant was paid his costs of the suit. It was further stated that the payment of Costs would be a condition precedent to the institution of a fresh suit, if any, by the plaintiffs. This order was made on the 10th April 1906. It is admitted that on the 5th October 1907, the plaintiffs commenced the present action without the payment of the costs awarded to the defendant. A preliminary objection was thereupon taken by the defendant and the Court directed, on the 26th August 1903, that the costs must be paid within a day. The costs were duly deposited on the day following and the Subordinate Judge held that the suit was competent. In support of this view, the Subordinate Judge appears to have relied upon the case of Abdul Aziz Molla v. Ebrahim Moll* 31 C. 965. The District Judge has, upon this part of the case, accepted the view of the Subordinate Judge and has distinguished the case of Hare Nath Das v. Sped Hossain Ali 10 C.W.N. 8 : 2 C.L.J. 480, upon which reliance was placed on be-half of the defendant. In this Court, it has been argued by the respondent that as payment of costs was a condition precedent to the institution of a fresh suit by the plaintiffs, the suit cannot be treated as properly instituted. In support of this position, reliance has been placed upon the decision in Chandu Lal Khusalji v. Awad bin Umar Sultan 21 B. 351. In our opinion, the case just mentioned is distinguishable. No doubt, the order made on the 18th April 1906 ought to have been carried out before the suit was instituted and the suit must be taken to have been validly instituted only on the day on which the costs were deposited. This, however, does not affect the position of the defendant, because no question of limitation arises whether the suit be taken to have been instituted on the 5th October 1907 or on the 27th August 1908. We are, therefore, of opinion that it is not obligatory upon the Court to dismiss the suit on the technical ground that the plaint had been presented before the costs were paid to the defendant. The view we take is supported by the decisions of this Court in the cases of Jogi Ahir v. Bishen Dayal 18 C. 83; Jeun Muchi v. Budhiram Muchi 32 C. 339 : 1 C.L.J. 43 and Gopilal v. Lala Naggu Lal 10 Ind. Cas. 6 : 14 C.L.J. 105 : 15 C.W.N. 998. The cases of Jagat Tarini Dasi v. Naba Gopal Chaki 34 C. 305 : 5 C.L.J. 270 and Sara Chandra Banerjee v. Apurba Krishna Roy 11 Ind. Cas. 187 : 15 C.W.N. 925 : 14 C.L.J, show that it cannot be laid down as an inflexible proposition of law that failure to cancy out strictly statutory directions or judicial orders does always make it obligatory upon a Court of Justice to dismiss the suit as improperly instituted. We must, therefore, overrule the objection taken on behalf of the respondent.
4. In so far as the appeal is concerned, it is clear from an examination of the. written statement aid the issues framed in the case that no question was raised as to the fraudulent nature of the assignment of the decree in favour of the plaintiffs. Reliance was particularly placed on behalf of the respondent upon the sixth and the seventh paragraph of the written statement. But it is clear that in these paragraphs, although the mortgage transaction is impugned as fraudulent, no reference is made directly or indirectly to the assignment in favour of the plaintiffs. It is further manifest that no such question was raised in the third issue which is in the following terms: 'Was the mortgage-bond relied on by the plaintiff a sham transaction. Were the decree obtained on it and the sale in execution thereof tainted with fraud?' In cur opinion, the District Judge ought not to have determined the question of the true character of the assignment which was not impeached as fraudulent in the Court of first instance. The only question before him was whether the mortgage-bond, which was the foundation of the title of the plaintiffs, was or was not a genuine transaction.
5. The result, therefore, is that this appeal must be allowed, the decree of the District Judge set aside and the case remanded to him in order that the appeal may be re-heard. The District Judge will first consider the question raised in the third issue. If that issue is answered against the plaintiffs, the suit must be dismissed. If it is answered in favour of the plaintiffs, the questions raised in the fourth, fifth and sixth issues must be considered. The costs of this appeal will abide the result.