JUDGMENT 1. The present suit was dismissed on a preliminary point, that is, on perusing merely the plaint. It appears from the order-sheet of the Munsif's Court that the parties were ready to adduce evidence, oral and documentary, but for reasons which are not explained either in the order-sheet or in the judgment the Court disposed of the case, as it says, on a preliminary point simply by reference to the statements in the plaint. The facts, so far as they appear from the pleadings, are these: -The share in dispute in the present case with certain other properties was mortgaged to Babu Nandan Lal by a deed of the 3rd May 1887. After Nandan Lal's death the executrix under his Will brought a suit on the mortgage and obtained a decree on the 28th July 1896. Under the decree the property was sold on the 24th April 1897. The mortgagors then borrowed money from the present Plaintiff, deposited the amount of the decree and got the sale set aside. On the 25th June 1897 they executed a mortgage in favour of the Plaintiff, the present Appellant. In the meantime two cowries of the property was sold in execution of a money-decree on the 18th May 1897 and was purchased by the Defendant first party. The pleadings and the judgments of the lower Courts do not show when the property was attached in execution of the money-decree under which the Defendants purchased. The pleadings also do not show under what circumstances the money was advanced by the present Plaintiff to the original mortgagors, and the conditions of the loan and the terms of the bond executed on the 25th June 1897. In fact the bond is not on the record and there is nothing before us practically beyond the plaint and the written statement to enable us to ascertain the facts. In the plaint the Plaintiff distinctly alleged that he had priority of title on account of his paying off the mortgage of the 3rd May 1887 notwithstanding that the sale had taken place seven days before. In the plaint the Plaintiff distinctly alleged that he had priority of title on account of his paying off the mortgage of the 3rd May 1887 notwithstanding that the sale had taken place seven days before. One of the questions which necessarily arose in the lower Courts and on which alone the decisions of the lower Courts are based is whether the mortgage having been executed subsequent to the sale in execution of the money-decree and before confirmation, the purchaser in execution of the money-decree had priority of title and that the confirmation dated back to the date of the sale. With reference to this point much depends upon the attachment itself as conceded by the learned vakil for the Respondents. As we have said there is nothing to show when the attachment took place. The question is one of some difficulty as to the right of the judgment-debtor to deal with the property subsequent to the sale under execution but before the confirmation. It is not necessary for us to express any opinion on the point at present. As we shall presently show the record is incomplete and it is not safe to pronounce our opinion on the question without the necessary fact being found. 2. In the 13th paragraph of the plaint the Plaintiff alleged that he had priority so far as he could fall back on the mortgage in favour of Nandan Lal. The paragraph runs thus: -That the Defendant No. 2, second party, having taken a loan of Rs. 995 from your Petitioner, Plaintiff, paid off within 30 days the decretal money due to Mussmtt. Tulsa Kuar, decree-holder aforesaid, and got the auction sale set aside and executed a mortgage bond on the 25th June 1897 in respect of the said money in favour of your Petitioner, Plaintiff; and in the bond of your Petitioner, Plaintiff, (the Defendant, 2nd party) mentioned 5g. 3c. 2k. 7r. 8p. the mortgaged property covered by the zuripeshgi thica pottah, and the decree of Babu Nandan Lal aforesaid keeping intact all the terms relating to the mortgage lien under the zuripeshgi thica pottah and the decree aforesaid. 3c. 2k. 7r. 8p. the mortgaged property covered by the zuripeshgi thica pottah, and the decree of Babu Nandan Lal aforesaid keeping intact all the terms relating to the mortgage lien under the zuripeshgi thica pottah and the decree aforesaid. Considering the fact that your Petitioner, Plaintiff, paid off the money due upon the said mortgage decree, the bond of your Petitioner, Plaintiff, stands in the place of the zuripeshgi thica pottah and the decree of Babu Nandan Lal, and has the effect of the mortgage previously created thereunder. In the prayers in the plaint too the Plaintiff asked for a declaration of his prior right by virtue of the mortgage in favour of Nandan Lal. 3. The consideration of this point depended upon the findings of fact to be arrived at by a consideration of the evidence that might be adduced on the point. As to how far the subsequent mortgagee, who had paid up the debt covered by the previous mortgage, is entitled to fall back on the mortgage, depends on the question of intention and the conduct of parties. This can only be found by a consideration of the oral evidence as to what was said or done by the parties, and any documents executed either then or later, if it appears that the subsequent document is practically a continuation of the act or acts commenced on the date of the payment of the previous mortgage. The Munsif did not at all consider this point, notwithstanding the express allegation of fact in the plaint and prayer to that effect. 4. The Plaintiff having lost the suit in the Munsif's Court appealed to the District Court and the third ground of appeal is expressly directed against the omission of the first Court to come to a finding on this point. It is probable that in the course of this argument in the District Court, the point might have been abandoned, the learned pleader who appeared for the Appellant not thinking it proper to press this point. It is now the settled rule, after the decision of the Judicial Committee in the case of Bent Pershad Koeri v. Dudh Nath Roy I. L. R. 27 Cal. 156 (1900), that the omission of a counsel either to argue a question of law, or his abandoning a question of law is not sufficient to disentitle Court to go into the question. 156 (1900), that the omission of a counsel either to argue a question of law, or his abandoning a question of law is not sufficient to disentitle Court to go into the question. The case is different when a question of fact is concerned. 5. We therefore on the application of the learned vakil for the Appellant thought it proper to allow him to argue the question,' and to find, if possible, what the relative rights of the parties were in respect to the right claimed by the Plaintiff and whether he could fall back on the mortgage executed in favour of Nandan Lal. On perusing the record we find that there are no materials on which we can come to a determination of the question; and the Munsif having excluded evidence on this point we cannot but remand the case to the first Court for taking evidence on this question as well as the other questions raised in the case and decide them in accordance with the directions given above. 6. It is a matter of regret that this defect, in the proceedings of the lower Court has been discovered after nearly four years. But as these points are material to the determination of the rights of the parties we are compelled to give directions which will prolong the litigation. 7. The case will go back to the Munsif for taking such evidence as the parties may adduce on the question raised in the pleadings and to decide the case thereafter. As this point was abandoned by the counsel for the Plaintiff in the lower Appellate Court, we direct that the Appellant do pay to the Respondents the costs of this appeal.