JUDGMENT Fletcher, J. - This is an Appeal from a decision of the learned Subordinate Judge of Burdwan, dated the 10th November 1911, affirming the decision of the Munsif. The suit was brought by the Plaintiff to recover possession of certain pieces of land on the ground that the Plaintiff had become the owner thereof as the purchaser in certain execution proceedings that had taken place in the suit which was brought by her to enforce her own mortgage security. The Plaintiff was the second mortgagee. The present Appellant who was the Defendant No. 1 in the suit was a prior mortgagee and, as such prior mortgagee, he hat brought a suit and had the property brought to sale and, in that sale by the Court, he himself had purchased the property. The first Defendant, however, failed to make the present Plaintiff a party to his suit and, therefore, the present Plaintiff was not bound by the decree for sale that was passed in the suit brought on the mortgage of the first Defendant. Subsequently, the present Plaintiff brought suit No. 477 of 1902 to enforce her own mortgage. In the plaint in that suit, the present Plaintiff alleged that the Defendant. No. 1, who was the Defendant No. 3 in that suit, was or claimed to be a prior encumbrancer and that the Defendant No. 1 having been in possession of the mortgaged properties, the rents and profits thereof had satisfied his claim ; and accordingly the reliefs that the present Plaintiff asked for in that suit were (1) that if on proper accounts being taken by the Court, any sum would be found due by the Defendant No. 3, that is, the Defendant No. 1 in the present case, then on the Plaintiff's paying the same to the said Defendant No. 3, the Court would be pleased to pass a decree under the provisions of the Transfer of Property Act in favour of the Plaintiff and against the Defendants Nos. 1 and 2 for the sums claimed with interest, and (2) that if the Defendants Nos. 1 and 2 (no mention was made of the present Appellant the Defendant No. 3 in that suit) did not pay off the decretal amount within the time allowed by the Court, then the Court would be pleased to pass a decree declaring that they have no right to redeem the properties. 1 and 2 (no mention was made of the present Appellant the Defendant No. 3 in that suit) did not pay off the decretal amount within the time allowed by the Court, then the Court would be pleased to pass a decree declaring that they have no right to redeem the properties. As a matter of fact, no relief was asked for against the present Appellant except that an account should be taken of what was due to him, if anything, on the footing of his prior mortgage security. The present Appellant put in a written statement denying that there was anything due upon his mortgage, but made no appearance in the suit. The suit thereafter came on for trial before the learned Judge and the Court passed a decree ex parte. The decree runs in these terms:--"Ordered that the suit be decreed ex parte with costs and interest at bond rate up to two months hence from date, the time allowed to pay off the decree and that, in default, the mortgaged properties be sold. Now, as already stated, no relief was asked for in that suit of the Plaintiff against the Defendant No. 3, that is, the present Appellant, except that an account should be taken of what was due to him on the footing of his prior mortgage security and, although the present Appellant did not appear in that suit, he was entitled to assume that the Court would only pass a decree in accordance with the reliefs sought for. In my opinion, the Court in passing this decree never intended to say that the absence of the present Appellant from the trial caused the mortgage security of the Plaintiff to override the prior security which was held by the Appellant. That point seems to me to have been quite conclusively determined by the decision which has been handed up to us in Ajudhya Pandey v. Jnayet Ulla I. L. R. 35 All. 111 (1912). That case seems to me to be conclusive against the argument that has been addressed to us by the learned Vakil for the Respondent. Then the present Plaintiff pursuant to this decree brought the properties to sale and herself became the purchaser, and next she brought this suit for ejectment against the first mortgagee. The short answer is that the Plaintiff has not got the interest of the first mortgagee. Then the present Plaintiff pursuant to this decree brought the properties to sale and herself became the purchaser, and next she brought this suit for ejectment against the first mortgagee. The short answer is that the Plaintiff has not got the interest of the first mortgagee. The case that the learned Vakil for the Respondent cited to us [Gopal v. Benarshi I. L. R. 31 Cal. 428 (1904)] is not an authority at all for the proposition that the stated. That was a case where a party knowing of his rights and being present before the Court did not put forward his claim under a prior mortgage. That is a very different case from a case where the Plaintiff setting up a case that one of the Defendants had a claim under a prior encumbrance says that the said Defendant by merely not appearing at the trial has lost the benefit of his prior encumbrance. I think, the contrary has been decided by the Allahabad High Court and that seems to me to be perfectly good law and good sense. The learned Judge never intended in the former suit that the Plaintiff's mortgage should be enforced except against the property that was comprised therein. That was the property subject to the first mortgage. Nobody has ever heard that the doctrine of merger applies so as to give the second mortgagee the benefit of the first mortgage simply by reason of the first mortgagee, in a suit to enforce his encumbrance, not having joined the second mortgagee whose existence perhaps he did not know of, as a party to the suit. The question in the present case is whether this is a case of res judicata. It is difficult to see what is the case of res judicata that has been decided. Nothing was decided in the former suit with reference to the present Appellant's prior encumbrance. That was left altogether untouched, and it was not within the scope of the suit for the Court to enforce a second encumbrance so as to override the prior encumbrance which happened to be held by the present Appellant who was not only the prior encumbrancer, but then also the owner of the equity of redemption. The mere fact that the prior owner of the equity of redemption was also the first mortgagee is obviously not sufficient to raise a case of res judicata. The mere fact that the prior owner of the equity of redemption was also the first mortgagee is obviously not sufficient to raise a case of res judicata. In my opinion, this case does not fall within sec. 11, C. P. C. The present appeal ought to be allowed and the case sent back to the Court of first instance for trial on the merits. Costs of this appeal and of the two lower Courts will abide the result of the Hal before the first Court. Richardson, J. I agree. There was no adjudication in the previous suit on the question that is now said to be res judicata. The Defendant No. 1 raised the question by his pleadings, as he was bound to do, but there was no decision upon it.