KALLOO Vs. NIADAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that a mortgage decree obtained by the defendants against the father of the plaintiffs was null and void as against the plaintiffs. The defendants obtained a preliminary decree against the plaintiffs father alone without making the plaintiffs parties to the suit. After the passing of the preliminary decree, and before the final decree was passed, the plaintiffs father died and the plaintiffs were substituted as legal representatives of their father. After the plaintiffs had been thus impleaded as legal representatives the final decree was passed ex parte. Subsequently the plaintiffs applied to set aside the ex-parte decree and upon its being set aside they raised objections to the preparation of the final decree. They objected that they were not legal representatives of their father, Ram Lall, and proceeded to attack the mortgage- decree on the ground that the mortgage was without consideration and without legal necessity.

(2.) The Court decided that the plaintiffs were the legal representatives of their father and held that it was not entitled to go into the question of consideration and legal necessity for the mortgage and accordingly disallowed the objection and ordered the preparation of the final decree. The plaintiffs did not appeal against the final decree but instituted the present suit for a declaration that the decree was not binding upon them. Their claim has been decreed.

(3.) The defences with which we are concerned in second appeal are that the suit was barred, firstly, by the rule of res judicata, and secondly, by the provisions of Section 47, Civil P.C. Both the Courts below have found these points against the defendants, who are the appellants before us. The only questions which we have to consider in second appeal is whether the suit was barred on either of the grounds suggested. As regards the question whether the suit was barred by the rule of res judicata the learned Counsel for the appellants contends that the final decree was passed against the plaintiffs themselves who had been impleaded as legal representatives of their father and that as they have not appealed against the final decree they are bound by it and are not entitled to challenge it by a separate suit.