GHURA KOER Vs. BISHUN RAM

JUDGEMENT

(1.) This appeal is by one who was defendant 2 in the suit. It arises out of a claim for recovery of mortgage money by sale of two out of 15 properties originally mortgaged. The mortgage was a simple one and was executed on 6 January 1911 for a sum of Rs. 6,999-15-0. The appellant now represents the original mortgagor. In the course of time, subsequently to the execution of the mortgage- deed, out of the 15 properties mortgaged, which will be found detailed at p. 3 of our paper book, properties 1 to 9 were purchased by the mortgagees themselves. The properties 12 to 15 were purchased by one Zuber, from whom they were wrested, after a pre-emption suit, by one Khairunnissa. Mt. Khairunnissa brought a suit for redemption being suit No. 198 of 1918 in respect of the four villages purchased by her. To this suit, the present appellant was a party. In Khairunnissa's suit, an account was taken of what was the liability on a particular date fixed by the Judge for redemption of the several properties owned by the several parties. The learned Judge found that on 25 April 1918, the date fixed for payment of the mortgage money by Mt. Khairunnissa, a sum slightly over Rs. 1,800 was payable by the properties Nos. 10 and 11 which were still in the possession of the representatives of the original mortgagor. The plaintiffs claim recovery of a certain amount by sale of the two properties, namely Nos. 10 and 11 which are called Alwalpur and Shahpore.

(2.) The main question that had to be determined by the Court below was, what was the amount for which these two villages were liable. The learned Subordinate Judge held that the judgment in the earlier suit of 1918 operated as res judicata between the present plaintiff and the appellant, although they were arrayed on the same side, as defendants, in that suit of 1918. Taking Rs. 1,800 as the basis of the liability of the two villages, still owned by the appellant, the learned Judge decreed the claim. In this Court, two points have been urged. The first is that the judgment of the earlier suit did not operate as res judicata, and the second is that even in the view taken by the Court below, the amount decreed is too much.

(3.) On the first point, we cannot agree with the argument of the learned Counsel for the appellant. It was urged that in the earlier suit, the appellant was not a necessary party. That is not our view of Order 34, Rule 1, Civil P.C. The suit was a redemption suit and, therefore, in the suit relating to a mortgage, the co- mortgagor of Khairunnissa, namely, the present appellant was a necessary party. The learned Counsel for the appellant has very fairly drawn our attention to the case of Ahmad Husain V/s. Muhammad Qasim Khan , to which one of us was party. In that case it was held that in a suit for redemption, a co-mortgagor who was not suing for redemption was a necessary party. We hold that in the earlier suit, Mt. Ghura Kuer, the appellant, was a necessary party.