JUDGMENT
Mullick, J.
1. The plaintiff sued upon a mortgage and obtained an ex parte preliminary decree in the following terms: “The plaintiff’s claim being proved it is ordered that the suit be decreed ex parte with costs and interest at 6 per cent. The defendants shall pay the decretal amount within six months from to-day. In default of payment the mortgaged property shall be sold in satisfaction of the decree”.
2. It is alleged that the sale of the mortgaged property has not satisfied the decree and the plaintiff desires to proceed under Order XXXIV, Rule 6, Civil Procedure Code, against the other properties of the judgment-debtors. Now the Subordinate Judge declined to allow the judgment debtors’ objection in regard to this application and to go into the question whether part of the amount covered by the decree was not barred at the time of the institution of the suit. The District Judge in appeal has come to a different conclusion and he thinks that as the judgment-debtors had no opportunity of adducing evidence upon this point in the trial of the mortgage suit, it is open to them in the proceeding under Order XXXIV, Rule 6, to raise this point. In my opinion the learned District Judge is right. The decree made by the Subordinate Judge makes no mention of the plaintiff’s right to recover against the other properties of the mortgagors, although the plaint contained a prayer to this effect. I do not, in these circumstances, see how there can be any estoppel against the mortgagors. It is true that they had an opportunity of raising the defence that they now wish to raise and did not do so, but nevertheless the Court’s decree was not founded upon the allegation of the plaintiff as regards his rights to recover from the other properties and there can be, in my opinion, no estoppel either legal or equitable which would prevent the judgment-debtors from asking for an adjudication upon a point, which was not then adjudicated. This disposes of the merits of the appeal.
3. A somewhat technical argument was next advanced as regards jurisdiction. It is said that the suit was valued by the plaintiff at Rs. 4,999-15-0 and there was in the plaint a prayer for interest pendente lite. It is to be noted that the plaintiff was careful to keep the value under Rs. 5,000, but it is contended that the real value of the suit was over Rs. 5,000 and the defendants ought to have appealed not to the District Judge, but to the High Court. The valuation of the suit must be taken upon the value which the plaintiff put upon his own plaint He did not value the interest pendente lite which he claimed nor does it appear that the Court took any notice of the prayer, because I do not find any mention in the decree of it. The question as to what is the actual value of the claim is a question of fact, and we have no evidence before us to show that the valuation was more than Rs. 5,000 and so it was accepted without any objection by any party in the Court of the District Judge. Therefore, we have no materials here for holding that the valuation exceeded Rs. 5,000 and the principle of Gulab Khan v. Abdul Wahab Khan 31 C. 365 : 8 C.W.N. 233 does not apply. Moreover, Section 11 of the Suits Valuation Act seems to be an answer to the present contention in appeal. The contention not having been raised at any stage in the Courts below and the jurisdiction of the District Judge having been accepted, we do not think it is open to the appellant to raise it now for the first time in the High Court. The appeal, therefore, will be dismissed with costs.
Thornhill, J.
4. I agree.