SHAIKH TAHIR HUSSAIN Vs. SYED BASIRUL HAQUE

JUDGEMENT

(1.) This appeal raises a question as to priority of mortgages and a question whether in the events which have happened the action of the appellant who was the plaintiff in the Court below was barred by res judicata.

(2.) The facts are simple. The plaintiff-appellant had a usufructuary mortgage dated 30 November 1910; he also had a simple mortgage of 29 October 1919. The defendants respondents in the meantime had obtained a simple mortgago of the same property executed on 12 May 1913, and in 1926 brought an action on that simple mortgage impleading the present appellant, who, as I have already said, was the plaintiff in the action in the Court below, as a pulse mortgagee, and in the plaint (which my learned brother has read) claimed the relief which is usually claimed in an action of that kind calling upon the principal mortgagor and the present plaintiff appellant to redeem if they thought so. It is quite clear that no relief was claimed in that plaint against the present plaintiff appellant, who was one of the defendants in that action, in his capacity as prior mortgagee under the usufructuary mortgage dated 30 November 1910 although as defendant in that action the present plaintiff appellant mentioned in his written statement the prior mortgage of 1910. In that case the decree was passed without any reference to the prior mortgage but in the judgment this passage appears: Defendants 1 and 6 of the second party (i.e. the present plaintiff- appellants) have prior as well as subsequent bonds. The matter requires no adjudication. It is sufficient that the defendants have asserted their claim.

(3.) As I have said nothing was mentioned in the decree and the property was sold and purchased by the then plaintiffs. Subsequently in 1932 this action was brought by the plaintiff-appellant against the defendants amongst others who were the plaintiffs in the former action claiming possession of the property. Clause (iii) of the relief claimed in the plaint was: The Court may be pleased to hold that as the defendant first party made purchase subsequent to the sudbharna bond, he is liable to pay the sudbharna money and a mortgage decree for the sudbharna money--Rs. 1124 odd--may be passed subject to the mortgage lien on the sudbharna and the mortgaged property.