ABDUL SHAKUR KHAN Vs. MTRAFIQUNNISSA

JUDGEMENT

(1.) This is a Letters Patent appeal by Abdul Shakur Khan, plaintiff, whose suit for sale on the basis of a mortgage has been decreed by the two lower Courts but has been dismissed by a learned single Judge of this Court. On 4 April 1915, Abdul Razzaq executed a simple mortgage in favour of Abdul Haq for Rs. 150 with 1 per cent per mensem interest. On 20 June 1921, the receiver of the estate of Abdul Haq insolvent sold the mortgagee rights to defendant 1 Mt. Rafiqunnissa. On 20th June 1922, Mt. Rafiqunnissa made a sub-mortgage of the mortgagee rights to the plaintiff for Rs. 200 at Re. 1-8-0 per cent per mensem.

(2.) In Suit No. 207 of 1925, the plaintiff sued as owner of the mortgagee rights under the mortgage of 4 April 1915, and based his suit on that mortgage. On 21 October 1926, the District Judge in first appeal dismissed the suit of the plaintiff on the following grounds: The plaintiff in this case does not care to sue on foot of his mortgage and so his suit cannot lie. I therefore find that the suit as framed is not maintainable.

(3.) The plaintiff has now brought the present suit in his capacity of mortgagee of mortgagee rights under the mortgage of 4 April 1915. The learned single Judge of this Court has held that the present suit of the plaintiff is barred by the rule of res judicata, because in his former suit the plaintiff should have made his rights as mortgagee of mortgagee rights a ground of attack. He has thus applied Expl. 4 to Section 11, Civil P.C., against the plaintiff.