JUDGMENT 1. The suit out of which this appeal No. 295 of 1899 arises was brought by the Plaintiff to enforce a mortgage-bond executed in his favour on the 26th February 1884 by the Defendants, 1st party. The Subordinate Judge, in whose judgment the facts of the case are fully set forth, has given the Plaintiff a decree. The Defendants, 2nd party, who have been held to be subsequent mortgagees, now appeal and their contention is that the bond executed in their favour by the Defendants, 1st party, are of prior date to that sued on by the Plaintiff, and that the Plaintiff is accordingly not entitled to priority over them. The Subordinate Judge, be it observed, has held the Plaintiff entitled to priority over the Defendants, 2nd party, owing to a prior bond, dated 5th Sraban 1283 (11th July 1876), executed in his favour by the late Ram Rakhan Singh, relative and vendor of the Defendants, 1st party, which though it was paid off by the subsequent bond of 26th February 1884, the Subordinate Judge has found the Plaintiff entitled to make use of, as giving him a prior mortgage lien over the mortgaged property. 2. The Appellants appeal against this portion of the Subordinate Judge's decree. The pleas urged on their behalf are as follows:-- (1) That the mortgage of 1876 was not kept alive, as held by the Subordinate Judge. (2) That the suit is barred by limitation. (3) That it is barred by estoppel and res judicata and (4) That the Plaintiff is not entitled to a mortgage lien in respect of a 5 gundas share of mouzah Barham, as this share was purchased by the Defendants, 1st party, in 1886, that is, subsequently to the execution of the mortgage-bond of 1884. 3. The learned pleader for the Appellants has argued that the mortgage-bond of 1876 cannot be held to have been kept alive (1) because it was divided into two by the two brothers of the original mortgagor Ram Rakhan, who purchased the share of Ram Rakhan and divided his liabilities under the bond of 1876, executing two separate bonds in place of it, (2) because the liabilities of the original mortgagor were thus transferred to others, and (3) because the rate of interest in the original bond was Rs. 2-4 per mensem, while in the substituted bond it was Re. 1 per mensem. 2-4 per mensem, while in the substituted bond it was Re. 1 per mensem. We are unable to agree to these contentions. Only the liabilities arising under the bond of 1876 were divided, and the subsequent transfers cannot affect the Plaintiff's right to use it for his protection, while the alteration in the rate of interest would seem to be immaterial. We consider that the reasons assigned by the Subordinate Judge for concluding that, notwithstanding the bond of 1884, the bond of 1876 was intended to be kept alive are sufficient. They are (1) that the Plaintiff retained possession of the bond ; (2) that there is a special clause in the bond of 1884, viz., para. 19 which provides for the accrual of the rights of the mortgagees both from the date of the bond then executed and from the dates of the prior bonds for the debts covered by which or in lieu of which the bond was executed, and (3) that the oral evidence on this point is explicit and credible. We must therefore hold that notwithstanding the bond of 1884, the prior bond of 1876, was intended to be kept alive. 4. The Appellants' next contention is that, if the Plaintiff relies on the bond of 1876, then the suit being brought more than 12 years from the date of payment fixed in that deed is barred. If this is not so, it is argued, and the Plaintiff sues on the bond of 1884, the Plaintiff's rights under the bond of 1876 must be regarded as abandoned. We cannot agree to this argument. The suit is in time, being brought within 12 years of the date of payment provided in the bond of 1884. Because the Plaintiff relies on the equity arising under his prior bond of 1876 to protect himself against the subsequent mortgagees, i.e., the Appellants, it does not follow that he is suing on the bond of 1876, and that the suit is barred, as not brought within 12 years of the date fixed for the payment of it. 5. The questions of estoppel and res judicata are more difficult. In the previous suit of 1890 the present Appellants predecessor was Plaintiff and the present Plaintiff was Defendant No. 14. The Defendants, 1st party, in the present suit occupied the same position in the previous suit. 5. The questions of estoppel and res judicata are more difficult. In the previous suit of 1890 the present Appellants predecessor was Plaintiff and the present Plaintiff was Defendant No. 14. The Defendants, 1st party, in the present suit occupied the same position in the previous suit. The present Appellant's predecessor was then endeavouring to enforce a bond, dated the 5th November 1877, which is one of the bonds relied on by the Appellants in this suit, against the mortgaged property. The present Plaintiff in his defence admittedly omitted to make any mention of his bond of 1876, which he is now endeavouring to set up against the Appellants and alleged himself to be merely a subsequent mortgagee. Hence, it is contended, that under Expl. II to sec. 13 of the Code of Civil Procedure, the present Plaintiff should have pleaded his bond of 1876 as a defence to the suit The Subordinate Judge has held that he was not bound to do so, because (1) he was not attacked qua the bond of 1283 (1876), but was attacked only on the basis of the bond of 1285 (1877) and (2) that the subject-matters of the two suits were different. 6. The present Appellants' predecessor was certainly in the previous suit seeking to enforce a bond, dated 5th November 1877, for Rs. 3,800 executed in favour of one Kailash Koeri, wife of Babu Birinchi Singh, which had been subsequently transferred to him. The present Plaintiff, then Defendant No. 14, resisted the then Plaintiff's suit, but never made any mention of his prior bond of 1876, which under Expl. II to sec. 13 of the CPC he certainly was bound to do, if he claimed priority for it over the then Plaintiff's bond and if the subject-matters of the two suits were the same. But he did not claim priority for it. On the contrary, he admitted in his written statement, that he was a subsequent mortgagee. But this would not amount to an estoppel in pais for the present Appellants were not induced to alter their position by the defence of the present Plaintiff in the previous suit. But he did not claim priority for it. On the contrary, he admitted in his written statement, that he was a subsequent mortgagee. But this would not amount to an estoppel in pais for the present Appellants were not induced to alter their position by the defence of the present Plaintiff in the previous suit. But, it is said the present suit is barred by the rule of res judicata, for the predecessor of the present Appellants was seeking to enforce his lien over the property mortgaged to him and the question was whether he or the present Plaintiff was in respect of the said property a prior mortgagee. It was decided that the then Plaintiff was the prior and that the present Plaintiff was a subsequent mortgagee as he claimed to be. The decision of this question turns on whether the properties mortgaged in the then Plaintiff's bond of November 1877, and the present Plaintiff's bond of 1876, are the same. It appears to us that they are the same. The first property mortgaged in the Plaintiff's bond of 1876 is 5 annas 6 damspatti share of taluka Ismailpur out of the 2 annas 8 damspatti. This is part of the 2 annas 8 gundas Pukhta under batwara in mehal taluka Ismailpur, referred to in the decree in the former suit. Then the second property mortgaged in the Plaintiff's bond of 1876 is 13 gundas 6 cowries share out of 16 annas of taluka Barham. This is part of the 2 annas out of 16 annas of mehal taluka Barham, specified in the decretal order in the previous suit. The properties mortgaged in the bond of 1876 were therefore also mortgaged in the bond of 1877. That being so, it appears to us, that the present Plaintiff cannot now claim for himself in respect of the present Appellants the position of prior mortgagee in respect of these properties, a position which, he expressly pleaded in the previous suit, he was not entitled to, and which it was decided in that suit be did not occupy. Hence, the Plaintiff's suit in our opinion is barred by the rule of res judicata, and the Appellants' appeal must prevail. 7. The Appellants' fourth contention is, also we think a good one. From the table printed at pp. Hence, the Plaintiff's suit in our opinion is barred by the rule of res judicata, and the Appellants' appeal must prevail. 7. The Appellants' fourth contention is, also we think a good one. From the table printed at pp. 133-134 of the paper-book, the correctness of which has not been impugned before us, it is clear that the 5 gundas share of the taluka Barham, to which this plea relates, was purchased in 1886. The mortgagors had then only a 2 annas share in that taluk, and the 5 gundas share they now have was purchased subsequently to the bond of 1884, The Plaintiff can therefore have no mortgage lien at all as regards this 5 gundas share. We accordingly decree this appeal with costs. This decision also governs appeal No. 301 of 1899, which is also decreed with costs.