V. GEERI NAICKEN Vs. NARY AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal. The suit giving rise to it was to enforce a hypothecation bond Defendant executed on her own behalf and on behalf of her minor children, Defendants 1 to 3, in favour of the Plaintiff, Defendant 5 and their mother Defendant 6.

(2.) AFTER the plaint in O.S. No. 39 of 1119 was filed the case had a chequered history, but we are not concerned with much of. it for the purpose of this appeal. First there was an ex parte decree in terms of the plaint against all the four Defendants. Then defendants 2 got the decree re -opened but through his default the suit happened to be decreed again. Afterwards the 3rd Defendant came on the scene and he got the ex parte decree as against him \ set aside and the suit restored to the file".

(3.) AT the fag -end of the Appellant's argument before us it was contended that as against Defendants 1, 2, and 4 there was a subsisting decree in terms of the plaint in the suit and die decree now appealed against should be treated as one dismissing the suit against Defendant 3 alone. We have said that no such contention was raised before the lower Court for a ground to .the effect that the lower Court went wrong in dismissing the suit as against Defendants 1, 2 and 4 because of the existence of a prior decree against them taken in the memorandum of appeal.