HANKAR RAI Vs. KAMTA PROSHAD SAHU AND ANR

JUDGEMENT

(1.) The simple question which arises in this second apeal is the same as that which was decided in the Court of Appeal below, namely, whether defendant No. 1 not having set up his alleged prior lien in the suit brought by Gopal Sahu to which he was made a party, is precluded from raising the plea in the present suit. On the authorities cited by the learned Judge in the Court below in his judgment and on the further authority of the Judicial Committee in the case of Mahomed Ibrahim Hossein Khan v. Ambika Pershad Singh 14 Ind. Cas. 496 : 11 M.L.T. 265; (1912) M W.N. 367 : 9 A.L.J. 332 : 14 Bom. L.R. 280 : 16 C.W.N. 505 : 15 C.L. J, 411 : 39 C. 527 (P.C.) : 22 M.L.J. 468 we are clearly of opinion that the learned Judge in the Court below was right when he says that these decisions clearly lay down that a subsequent mortgagee, who has been made party to a suit on a prior mortgage but who has failed to appear, cannot afterwards aise the plea that he had paid off a prior lien and was, therefore, in the position of a prior mortgagee. The same question was recently discussed at length in Mohant Kishen Dyal Gir v. Mahomed Amiral Hussein 26 Ind. Cas. 073 : 19 C.W.N. 942 which was decided by one of us sitting with Mr. Justice Carnduff on the 16th December 1914, in which we said, the test in all cases we have had laid, before us is, was the defendant impleaded as a puisne mortgagee and, therefore, a necessary party, if he was, he is bound to set up his prior mortgage as well as his subsequent mortgage. That being so, we can have no doubt that the decision of the lower Court is correct.

(2.) As regards any equitable relief which might have been given to the parties on the facts, we do not think that in second appeal we can deal with that question. The only question before us is whether the learned Judge in the Court below was right or wrong in the matter of the law as laid down by him.

(3.) The result is that the appeal is dismissed with costs.