GOPAL LAL Vs. BENARASI PERSHAD CHOWDHRY

JUDGEMENT

(1.) The suit out of which this appeal arises was one brought to enforce a registered mortgage bond, dated the 23 May, 1885, for Rs. 2,000, executed by two brothers Rachha Singh and Rang Lal Singh and by the son of Rang Lal Singh in favor of the father of the plaintiffs. The Subordinate Judge has given the plaintiffs a decree. The defendant No. 5, who is the auction purchaser of the properties 1 to 3 only, appeals.

(2.) The grounds of his appeal are (1) that the suit is barred by the rule of res judicata; (2) that the mortgage having been executed by two only of the members of an undivided Hindu family governed by the Mitakshara law and not by a third member, viz., a third brother named Puchhya Singh, is void; (3) that the defendant-appellant is not precluded from contending that it is void; (4) that the mortgage being void, the plaintiffs are not entitled to a charge on the mortgaged property, and (5) that Puchhya Singh is a necessary party to the suit. It appears to us that the first of these pleas must prevail. It is admitted that the father of the present plaintiffs was a defendant in a suit brought by the present appellant Gopal Lal in 1891 to enforce a registered mortgage bond dated 22 February, 1887 and in which he prayed for the sale of the mortgaged properties free from incumbrance. He at first described the father of the plaintiffs, who was defendant No. 11 in that suit, as a subsequent mortgagee and purchaser. In a petition dated 28 April 1891, he described him as having purchased property No. 6, subsequently to the date of his mortgage. Now the father of the plaintiffs made no appearance in this suit. The suit was decreed. The Judge gave the mortgagors and their alienees an opportunity of redeeming the mortgage and directed that, failing redemption, the plaintiff was entitled to sell the properties.

(3.) Now, it seems to us that under explanation II to Section 13 of the Civil P. C., the father of the present plaintiff, was bound in that previous suit to disclose his prior mortgage, which the plaintiffs are now seeking to enforce. He should have prayed either that he should be paid off or that the property should be sold subject to his prior mortgage lien. As he did not do so, his mortgage lien must be held to have been extinguished. The case of Sri Gopal V/s. Pirthi Singh (1902) I.L.R. 24 All. 429 : L.R. 29 I.A. 118 in which it has been held that an earlier mortgagee, who in a redemption suit by a later mortgagee fails to set up one of his incumbrances a charge to be redeemed, is barred by Section 13 of the Civil Procedure Code from bringing a fresh suit to enforce the same, would seem to be sufficient authority for this view.