MUHAMMAD KANI ROWTHAN Vs. VISVANATHA AIYAR

JUDGEMENT

(1.) THOUGH in the former suit the question whether each of the defendants had mortgages upon the property was a matter which was in issue between the plaintiff and the respective defendants, there was no such issue as between the defendants themselves. So long as the interests of the 5 defendant were protected by the decree for sale being subject to his mortgage, it was entirely immaterial to him whether it was subject to other mortgages or not. There was no question of priority or of redemption gone into and the rights of the parties were not further dealt with than by making the decree for sale subject to certain encumbrances of which the 5 defendant's was one. In these circumstances there was no res judicata as between the 5 defendant and his co-defendants.

(2.) THE decrees of both the lower Courts must be reversed and the suit remanded to the Court of First Instance for disposal according to law. THE costs in this and in the lower appellate Court will be costs in the cause.