JUDGMENT
1. The plaintiff’s case is that they are assignees of a mortgage executed by the 1st defendant to one Rajagopala Aiyar The District Judge finds that the mortgage was a sham. There is evidence to support this finding, and we cannot go behind it in second appeal.
2. On behalf of the plaintiffs it has been contended that even if the mortgage was a sham as between the mortgagor and the mortgagee the plaintiffs took as bona-fide assignees without notice. This is a new case It was not raised in the issues and was not taken in the lower appellate court. The appellants are not entitled to set up this new case on second appeal.
3. The appellants have taken a further point that inasmuch as the 5th defendant the subsequent mortgagee alone appealed, the lower appellate court had no power to set aside the decree for the benefit of the defendants who did not appeal. The ground of defence, common to all the defendants, was that the mortgage was a sham, and the decree of the Subordinate Judge proceeded on the ground that the mortgage was not a sham. Following the decision of this Court in Terrabalu Viraraghava Beddi v. Abdul Khadur 4 M.H.C.R. 26 and the Calcutta case of Ram Kamal Sahba v. Ahmad Ali I.L.R. 30 C. 439, we hold that the decree proceeded on a ground common to all the defendants, and that the decree of the lower appellate court enures for the benefit of the defendants who did not appeal. The case of Syed Hussain v. Madar Khan I.L.R. 17 M. 265 may be distinguished on the ground that one of the defendants in that case set up a title to an item of property which was not claimed by the other defendants. This being so, there was good reason for holding that the decree did not proceed on a ground common to all the defendants. In the judgment in that case the Judges say that Section 544 of the Code of Civil Procedure pre-supposes a common ground of decision affecting property in which both those who have appealed and those who have not appealed have an interest either direct or indirect.” In the present case those who have not appealed viz., the 1st and 4th defendants certainly have an interest in the property which is the subject of the decision. The second appeal is dismissed with costs.
