HARBANS Vs. RAM KUMAR NAIK

JUDGEMENT

(1.) THE only question in this appeal is whether the judgment in a prior suit operates as res judicata between the parties so as to preclude the defendants from raising the pleas which they have raised in this suit. THE present suit is one for fore closure of two mortgages, dated respectively the 1st of April 1902 and the 14th of November 1903,executed by Misri Naik in favour of one of the plaintiffs and the predecessors-in-title of the other plaintiffs. THE original mortgagor is dead. THE defendants to the suit were the three sons and three grandsons of the mortgagor, and the widow of a predeceased son. THE defendants Nos. 1-7, who are the principal defendants in this case, raised various pleas, denying the mortgages, denying payment of consideration and denying the existence of family necessity for the execution of the mortgages. THE Court below has held that by reason of the decision in a previous suit it is no longer open to the defendants to raise these pleas. THE previous suit to which reference has been made in the judgment of the Court below was a suit brought in 1909 by one Jia Lal, a subsequent mortgagee of the property comprised in the mortgages now in suit. In that suit the defenders were the present plaintiffs or their predecessors-in-title, and the legal representatives of the mortgagor. Jia Lal asserted that the properly was free from the two prior mortgages in favour of the present plaintiff, first, because the mortgages had been discharged. He next urged that the property was free from those mortgages because the mortgages were fictitious and without consideration. We find from the decree made in the previous suit that he Claimed an alternative relief to the effect that in the event of the prior mortgages being held to be valid and subsisting mortgages, he might be allowed to redeem them and bring the mortgaged property to sale for realisation of the amount due under the prior mortgages as well as the amount due upon his own mortgage. In that suit the legal representatives of the mortgagor contended that the prior mortgages held by the present plaintiffs, or their predecessors-in title, were fictitious and were not subsisting mortgages, capable of enforcement. THE Court framed an issue on the point and it decided it in favour of the present plaintiffs or their predecessors-in-title who were in that suit defendants Nos. 12-15. This decision, it is contended, has the effect of res judicata in the present suit in which the same plea has been raised by the defendants as in the former suit. It is urged on behalf of the plaintiffs appellants that the decision of the Court below on the question of res judicata is erroneous inasmuch as the parties to the present suit were arrayed on the same side in the previous suit. It is true that a decision on an issue arising between co-defendants cannot have the effect of res judicata unless it was necessary that the issue should have been determined for the purpose of granting relief to the plaintiff. In the previous suit the plaintiff to that suit raised the contention, as we have said above, that the mortgages in favour of the present plaintiffs did not subsist because the amount of the mortgages had been discharged or because they were fictitious. THE first ground taken by them for their allegation that the mortgages did not subsist was abondoned; but the second ground which was also the ground raised by the legal representatives of the mortgagor was pressed and an issue was framed on that point. THE finding on that issue was not sufficient for the disposal of the case, because there was the alternative prayer for redemption to which we have referred above. For the determination of that part of the claim and for granting or refusing to the then plaintiff the relief Claimed under: the alternative prayer which was added by an amendment of the plaint allowed by the Court, the question of the validity and reality of the mortgages now in suit was a substantial and essential question, which had to be determined between the two sets of defendants to the suit in order to grant to the plaintiff the alternative relief which he asked for. THE effect of the decision in the suit, if that part of the relief had been granted, would have been to make a decree against the mortgagors for sale of their property not only for the realisation of the amount of the mortgage held by Jia Lal, the plaintiff to that suit, but also the amount of the two mortgages now in dispute. As a matter of fact the Court did go into that question and in its decree provided that if the amount of the mortgage held by the plaintiff to that suit was not paid by the mortgagors, the mortgaged property should be sold and out of the proceeds of the sale the mortgages held by the present plaintiffs should be first satisfied. This being so, there was in the previous suit an issue between the co-defendants which it was necessary to determine in order to grant relief to the plaintiff, That issue having been decided adversely to the present defendants, it is no longer open to them to raise the question already decided by the finding on that issue. THE Court below has in our opinion rightly held that the matter is res judicata and this appeal must fail. We dismiss the appeal with costs, including fees in this Court on the higher scale. We extend the time for payment for six months from this date.