Judgement Appeal from a decree of the High Court (Nov. 10, 1897) affirming in second appeal a decree of the District Judge of Aligarh (June 12, 1894) which had affirmed a decree of the Subordinate Judge of Aligarh (Aug. 12, 1893). The respondent, Pirthi Singh, and two brothers represented by the next three respondents, were on September 1, 1870, the joint owners of a 4 ½ biswas share of the village or mauza called Nai or Manai. On July 21, 1871, the three brothers executed a mortgage (No. 1) of 1 ¼ biswas (a biswa is used to denote a one-twentieth part) of the said village to one Eshuar Das, who died many years ago, leaving two sons, Sita Ram, deceased without issue, and Daya Kishen, the deceased father of the appellant, who is the sole representative of Eshuar Das. It was sued upon on July 11, 1883, by Sita Ram and Daya Kishen in the Court of the Subordinate Judge of Aligarh, the defendants being the mortgagors. None of the later mortgagees hereinafter mentioned were parties to that suit. A decree was made therein on September 3, 1883, for sale in default of payment, and thereunder the said 1 ¼ biswas share was attached and sold, and purchased by the persons who were plaintiffs in the suit. On August 30, 1872, the three coparceners executed a mortgage (No. 2) of a 3 biswas and a fraction share of the said village to two persons named Murli (represented by the seventh to tenth respondents) and Sarnam, the eleventh respondent. Murli and Sarnam, on August 15, 1883, sued the mortgagors upon their mortgage, and got a decree on December 17, 1883, and thereunder attached and sold, and themselves purchased, a 1 ¼ biswas share, part of the 3 biswas and a fraction share of the said village. They then sued Sita Ram and the appellant (who represented his father Daya Kishen, deceased) in suit No. 166 of 1888, in the same Court, to redeem their 1 ¼ biswas of the said village, and got on July 25, 1889, a decree declaring them entitled to redeem the said share upon payment of Rs.1527 7a., being such proportion of the debt due on the basis of the mortgage of July 21, 1871, as was held to be attributable to the said 1 ¼ biswa of the village. That sum was duly paid by Murli Singh and Sarnam Singh, who thereupon became the absolute owners of the 1 ¼ biswas share of the village. On February 7, 1874, the three coparceners executed a mortgage (No. 3) of a 4 biswas share of the said village to Eshuar Das to secure a loan of Rs.250 with interest. On July 16, 1874, the three coparceners executed a mortgage (No. 4) of 3 ½ biswas also to Eshuar Das. The heirs of Eshuar sued only the representatives of the mortgagors on this bond in the Court of the Subordinate Judge of Aligarh in suit No. 129 of 1888, and on September 26, 1888, got a decree, in execution of which they attached and sold a 1 biswa and 7 ½ biswansi share of the said village, the fifth respondent Bechai Lal being the purchaser. On August 18, 1876, the three coparceners executed to Bhagwan Das a mortgage (No. 5) of the whole 4 ¼ biswas of the said village to secure the payment of Rs.3766. This mortgage bond became vested in the respondent Musammat Janki, as assignee thereof, who became plaintiff in suit No. 150 of 1888 upon such bond, the defendants thereto including the mortgagors or their representatives, the representatives of Eshuar Das, Murli Singh, and Sarnam Singh. In that suit the representatives of Eshuar Das pleaded their rights under the above-mentioned first and fourth mortgages, under which they claimed priority over the fifth mortgage; but they said nothing as to the third mortgage, that of February 7, 1874. The Subordinate Judge of Aligarh gave the plaintiff a decree for the amount claimed, but he found that no priority had been established in favour of the fifth mortgage over the first, second, and fourth mortgages, but that those mortgages had priority over the fifth mortgage, and that unless Janki was prepared to redeem the said three mortgages there was only a ¼ biswa share of the village which she could bring to sale in execution of her decree. Thereupon the appellant, on April 12, 1893, brought his suit on the bond of February 7, 1874 (the third mortgage), against the representatives of the mortgagors, against Bechai Lal, Janki, and Murli Singh and Sarnam Singh, "seeking (1.) to have a decree against the representatives of the mortgagors and Bechai Lal and Janki for the amount due on mortgage No, 3; (2.) that Murli Singh and Sarnam Singh might be ordered to reconvey, upon receiving payment of what might be due to them on the bond of August 30, 1872, the 1 ¼ biswas purchased by them; and (3.) to have the 4 biswas share comprised in mortgage No. 3 sold in satisfaction thereof. Bechai Lal and Janki pleaded that the suit was barred by ss. 13 and 43 of the Civil Procedure Code; and that the money advanced by Bhagwan Das under the fifth mortgage was appro priated to the liquidation of claims which had priority over the appellants bond of July 21, 1871, and that therefore the fifth mortgage was entitled to priority over the said last-mentioned bond. Sarnam Singh and Murli Singh pleaded that the claim was barred by s. 13, inasmuch as the existence of the said bond had not been pleaded in the suit No. 166 of 1888, brought by them to redeem the mortgage of July 21, 1871. The Subordinate Judge (whose decree was affirmed by the District Court) dismissed the suit, holding that it was barred by s. 43; and also under the provisions of explanation 2 of s. 13 of the Civil Procedure Code (Act XIV. of 1882), inasmuch as the appellant had not set up his rights under the mortgage of February 7, 1874, either in the redemption suit of Murli and Sarnam (No, 166 of 1888) or in the suit of Musammat Janki (No. 150 of 1888). The High Court, when the case came before them, said that they were not prepared to uphold the decision of the lower Courts so far as they had held that the suit was barred by s. 43. But they held, on the authority of Mahabir Pershad Singh v. Macnaghten (( 1880) L. R. 16 Ind. Ap. 107.) and Rameswar Pershad v. Raj Kumari Ruttun Koer ((1802) L. R, 19 Ind. Ap. But they held, on the authority of Mahabir Pershad Singh v. Macnaghten (( 1880) L. R. 16 Ind. Ap. 107.) and Rameswar Pershad v. Raj Kumari Ruttun Koer ((1802) L. R, 19 Ind. Ap. 234.), that the mortgage of February 7, 1874, ought to have been made a ground of defence in the two suits, No. 166 of 1888 and No. 150 of 1889, and therefore should be held to be a matter directly and substantially in issue in those suits, and that therefore the present suit, which was brought upon the said bond in April, 1893, was barred by s. 13. Mayne, for the appellant, submitted that s. 13 did not bar the suit. The High Court was wrong in treating Jankis suit No. 150 of 1889 as a suit to redeem all prior mortgages. It was in reality a suit to declare that her mortgage of 1876 maintained for her benefit the four mortgages of 1868, 1869, and 1870, and gave her precedence over all later mortgages, though prior to her own, because they had been satisfied by means of the money advanced by Bhagwan. In view of the declaration by the judge in her suit as to the terms upon which she might get a relief which she had never asked for, the then defendant ought to have set up the mortgage now sued on, and virtually did set it up. But the question whether the mortgage should have been pleaded against Jankis suit depends upon the terms of the prayer therein contained, not on the relief eventually granted by the Court. As regards Murli and Sarnams suit, they wanted, as mortgagees of 1872, to redeem a mortgage of 1871, and it was no answer to them to set up a mortgage of 1874. Ross, for the respondents, was not heard. June 6. The judgment of their Lordships was delivered by SIR FORD NORTH. This action relates to certain incumbrances created by Nek Ram, Pirthi Singh, and Ram Singh, the owners of several biswas in the Mauza Manai, in the Aligarh District. One of them and the representatives of the other two are respondents on this appeal, and they are all included in the term " mortgagors”. The five following incumbrances on that property are material— dth2017Date of Mortgage. Amount. Names of Mortgagees. Rs. Eshuar Das. 1. 21st July, 1871 .... 1000 Murli Singh. 2. One of them and the representatives of the other two are respondents on this appeal, and they are all included in the term " mortgagors”. The five following incumbrances on that property are material— dth2017Date of Mortgage. Amount. Names of Mortgagees. Rs. Eshuar Das. 1. 21st July, 1871 .... 1000 Murli Singh. 2. 30th August, 1872 800 Sarnam Singh. 3. 7th February, 1874 250 Eshuar Das. 4. 16th July, 1874 .... 1500 Eshuar Das. 5. 18th August, 1876 3811 Bhagwan Das. In 1883 Sita Ram and Daya Kishen (heirs of Eshuar Das then deceased) commenced an action (No. 121 of 1883) on the bond of July 21, 1871, against the mortgagors only; and on September 3, 1883, obtained a decree for payment, and if necessary a sale. In the same year Murli and Sarnam Singh, commenced an action (No. 142 of 1883) on the bond of August 30, 1872, in which action also the mortgagors were the only defendants; and on December 17, 1883, they obtained a like decree for payment, and if necessary a sale. Under that decree 1 ¼ biswas of the mortgaged property were sold, and were purchased by Murli and Sarnam Singh. In July, 1888, Sita Ram and the present appellant, Sri Gopal (the son of Daya Kishen, who was then dead), commenced an action (No. 129 of 1888) against the mortgagors only, under the charge of July 16, 1874; and on September 26, 1888, obtained a decree for payment and sale in default. Part of the mortgaged property was sold in execution of that decree, and was purchased by the respondent, Bechai Lal. The charge of August 18, 1876, in favour of Bhagwan Das was sold by him to Shiam Lal, and by him to Babu Sri Ram, the father of the respondent, Mussammat Janki; and it was afterwards transferred by him to her by way of gift. In August, 1888, Sri Ram commenced an action (No. 150 of 1888) to enforce the charge of August 18, 1876; but, having died on the eve of the trial, the name of his daughter, the respondent Mussammat Janki, was substituted as plaintiff. The mortgagors, Sita Ram and the appellant, and Murli and Sarnam Singh, were all made defendants in that action. The mortgagors, Sita Ram and the appellant, and Murli and Sarnam Singh, were all made defendants in that action. The plaintiff therein sought to establish that charge, as having priority over the earlier mortgages above referred to, upon the ground that the money thereby secured had been borrowed to pay, and had been applied in paying, certain other charges on the same property of still earlier date, all being prior to 1871; but this claim to priority broke down, the plaintiff having failed to satisfy the Court that the earlier charges had been kept on foot, or that the money had been so applied. The decree gave the plaintiff judgment for payment against the mortgagors; and declared that in default of payment she would be entitled to sell ¼ biswa of the land comprised in the mortgage sued on, which was free from all incumbrances; and could also sell the remaining 4 biswas of the mortgaged land after fully paying and satisfying the amount of the prior debts detailed at the foot of the judgment, namely, the bond in favour of Murli and Sarnam Singh dated August 30, 1872; and the bond in favour of Sita Ram and Sri Gopal dated July 21, 1871. In the month of April, 1893, the appellant Sri Gopal as sole plaintiff (Sita Ram being then dead, and all the securities in favour of Eshuar Das being then vested in him alone) brought this present action (No. 67 of 1893) to enforce the bond of February 7, 1874, against the mortgagors, the respondents Bechai Lal and Mussammat Janki and the respondents Murli and Sarnam Singh, all of whom were made defendants. The defendants Bechai Lal and Mussammat Janki pleaded, inter alia, that in the action No. 150 of 1888 the parties represented by the appellant did not set up the bond of February 7, 1874, and that, therefore, this action was barred by s. 13 of the Code of Civil Procedure; and this view was sustained by the Sub- ordinate Judge of Aligarh in 1893, by the District Judge in 1894, and by the High Court of the North-Western Provinces in 1897. The latter Court said in its judgment " In our opinion, not only might the representatives of Eshuar Das have pleaded their mortgage of February 7, 1874, but they ought to have done so; and, if they had done so, no decree for sale could have been made without these rights being protected by the decree. They not having done what they might and ought to have done as an answer pro tan to the suit of Sri Ram, we are of opinion that s. 13 of the Code of Civil Procedure applies.” The materiality of the mortgage here referred to is evident. If Mussammat Jankis claim had succeeded to its full extent she would have established her priority over all the four bonds in question. As it was, she only established her claim subject to the specified securities of Sri Gopal and Murli and Sarnam Singh, which did not include the bond now sued on. The appellant would have been entitled to plead and prove this bond as a bar to any decree being made for sale except subject to that bond. Had he done so, it would have been included in the "details of liens" at the end of the decree, and the right of Mussammat Janki would have been expressly subordinated to that charge also. The judgments are clearly right, and the appeal would have been unarguable but for an ingenious point raised by the appellants counsel. He set up at the bar (notwithstanding the statement in the appellants case that no facts are in dispute) that all the judges were mistaken in saying that this bond of February, 1874, was not set up by the appellant; that, in fact, it was set up, and that the decree was wrong in not dealing with it. But that decree might have been corrected if not in accordance with the judgment, or appealed against if both judgment and decree were wrong; and, neither of these courses having been adopted, their Lordships cannot go behind it. No pleadings in that action are before the Court, except the statement of Sita Ram, which does refer to the "bonds" (without saying what bonds) in his favour. No pleadings in that action are before the Court, except the statement of Sita Ram, which does refer to the "bonds" (without saying what bonds) in his favour. It does, indeed, appear from the reasons given by the learned judge that the existence of Sri Gopals three bonds was within his knowledge, but for some reason the two later bonds were dropped; no issue was directed about either of them, although an issue (2.) was directed as to the bond of July 21, 1871, and the parties were apparently content that they should not be dealt with by the decree. That the matter was not overlooked is also indicated by the form of the appellants notification of June 20, 1892, set out in the record. And all doubt upon the point is removed by paragraph 7 of the plaint in this action, in which the pleader, anticipating the defence that would be set up, endeavours to forestall it by saying " Mussummat Janki had brought the claim for fear of the amount of the bond dated July 21, 1871, and a finding was recorded in respect of the same. There was no other question in that case as to the other matter relating to the hypothecation of the plaintiff and his uncle Sita Ram," The appeal, therefore, fails entirely as to Mussammat Janki. With respect to Bechai Lal, it is difficult to see why he is brought here. The claim for personal payment against him is idle. All that he did was to purchase some of the property which was sold by auction under the decree in the action in which Sita Ram and Sri Gopal were plaintiffs (No. 129 of 1888). According to the conveyance to him this sale was made under the decree in the action No. 121 of 1883; but this is not material. In each of those actions the appellant or his predecessors in title were plaintiffs. In either case as against Bechai Lal the case entirely fails. Then as to Murli and Sarnam Singh. The former died in 1897, but his representatives are before the Court as respondents. Their position is somewhat different. Their mortgage of August 30, 1872, was subject to the appellants mortgage of July 21, 1871, but paramount to his mortgages of February 7 and July 16, 1874. Then as to Murli and Sarnam Singh. The former died in 1897, but his representatives are before the Court as respondents. Their position is somewhat different. Their mortgage of August 30, 1872, was subject to the appellants mortgage of July 21, 1871, but paramount to his mortgages of February 7 and July 16, 1874. Their decree against the mortgagors of December 17, 1883 (No. 142 of 1883), has been already mentioned, as also has the purchase by them under that decree of 1 ¼ biswas of the mortgaged property. Sita Ram and Daya Kishen, who had already obtained a decree (No. 121 of 1883) against the whole of the property under their prior charge, proceeded thereunder to sell, over the heads of Murli and Sarnam Singh, the same 1 ¼ biswas which Murli and Sarnam Singh had purchased, and themselves became the purchasers of that property under their own decree. There upon, in 1888, Murli and Sarnam Singh commenced an action (No. 166 of 1888) against Sita Ram and Sri Gopal alone, and on July 25, 1889, obtained a decree to the effect that, notwithstanding the decree in the prior action, to which they were not parties, they were entitled to redeem the 1 ¼ biswas upon payment of such a proportion of the whole debt due to the defendants on their prior security as the 1 ¼ biswas bore to the whole property comprised in the security of 1871; and, this having been paid by Murli and Sarnam Singh into court, a transfer to them of the 1 ¼ biswas was directed. In this action the appellant, as owner of the charge of February, 1874, might have set up that, though Murli and Sarnam were entitled to redeem his first charge, he, by virtue of his second charge of February 7, 1874, was entitled in turn to redeem them; and if this had been done he could have got then what he asks now, and the necessity for this suit would have been avoided, and the parties would have escaped this shocking multiplication of actions. Three Courts below have taken this view, and their Lordships see no reason to dissent from it. There are other difficulties in the plaintiffs path to be removed before he could succeed against Murli and Sarnam Singh in this appeal. Three Courts below have taken this view, and their Lordships see no reason to dissent from it. There are other difficulties in the plaintiffs path to be removed before he could succeed against Murli and Sarnam Singh in this appeal. Among others, s. 43 of the Civil Procedure Code was held to be a bar to his suit in the two first Courts. The Court of Appeal expressed some doubt whether that was correct. There might have been a nice question to be argued; but the appellants counsel did not open it, and did not even read the section to the Committee. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellant must pay the costs of the respondents Bechai Lal and Mussammat Janki, who alone defended this appeal.