JUDGMENT
1. This appeal arises out of a suit for sale brought on the basis of a mortgage, dated the 13th April 1891, which was executed by one Isri Rai for a sum of Rs. 499. The plaintiffs-respondents made parties to this suit the present appellants, sons and grandsons of Tsri Rai and Radha Kishen &c, the third set of defendants, persons who-had a prior mortgage over a portion of the property now in suit. The other defendants are Ishri Rai and certain subsequent mortgagees. It appears that the prior mortgage of Badha Kissen was dated the 4th of; January 1890. A suit was brought on that bond and a decree for sale obtained in 1897 by the prior mortgagees. To that suit, the subsequent mortgagees, the plaintiffs-respondents, were made partes. They failed to redeem. The property was sold and purchased by the prior mortgagees. Subsequently to that the auction-purchasers re-sold the property to the present defendants-appellants, the sons and grandsons of Isri Rai. The Plaintiffs-respondents sought to make this portion of the property, which was re-purchased from the prior mortgagees, liable for the debt due on their bond. The present appellants urged in their defence, first, that this portion of the property purchased by them from the prior mortgagees was not liable for the plaintiffs’ debt; secondly, that the family to which they belonged was a joint Hindu family and Isri Rai’s cousin was, therefore, a necessary party to the suit; thirdly, that Isri Rai was a man of immoral character and that he did not contract the loan for family necessity and they as sons and grandsons were not liable. It is to be noted that in paragraph 3 of the plaint, the plaintiffs distinctly allege that the mortgage was created in respect of antecedent debt. The Court of first instance decreed the claim and that decree was confirmed on appeal by the lower appellate Court. The defendants-appellants now come to this Court in second appeal. They urge, first, that the lower appellate Court is wrong in holding that the appellants cannot impugn the transaction unless they can show that the debt was contracted for immoral purposes, secondly, that it was for the plaintiffs to prove that the debt was obtained “for family necessity or to meet an antecedent debt, and, thirdly, that in the present case the debt was neither antecedent nor was it contracted for the benefit of the family. There is a distinct finding in the judgment of the Court of first instance that the transfer was in lieu of antecedent debts and that those debts were not contracted for immoral purposes. On appeal to the lower Court, the appellants did not challenge the finding of the Court of first instance that the transfer made was in lieu of antecedent debts. It is urged that there was no special issue on the point and the parties did not go into evidence at all. In our opinion the second issue framed in the case was broad enough to cover the point and the point was clearly before the first Court. The finding thereon is very clear and distinct. It was for the appellants to challenge the finding on appeal to the lower appellate Court and having failed to do so, they must be deemed to have accepted that finding. The lower appellate Court further held that the debts were not contracted for “any immoral purpose whatsoever. This is a clear finding of fact which is binding on us. The sons and grandsons of Isri Rai are, therefore, bound by the mortgage created by Isri Rai in that the transfer was made in lieu of antecedent
debts, which debts were not contracted for immoral purposes. On the question of non-joinder of party, the lower appellate Court most distinctly found that Isri Rai and his cousin were separate and not joint. If this be correct, then there was no force in the plea of non-joinder. It is urged before us that the point is res judicata by reason of the decision of the 2nd June 1897. That decision was ‘ passed in a suit brought by the prior mortgagees to enforce their mortgage and the sons and grandsons of Isri Rai pleaded that the family was joint. The issue arose between the prior mortgagees on one side and the present appellants on the other side and it was held as between them that the family was joint and not separate at the date of the prior mortgage. In the first place, the question in the former suit was not in issue between the two sets of defendants and in the second place the issue in the present case is whether cr not the family was joint not on the date of the prior mortgage but Oil the 13th April 1891 the date of the second mortgage. The points in issue in the two suits were not the same and the rule of res judicata cannot apply and we are bound by the finding of fact of the lower Court that on the date of the present mortgage the family was separate. There remains one more point for decision. The appellants challenge the decree of the lower Court in so far as it has made that portion of the mortgaged property liable for the plaintiff’s debt, which was sold in execution of the decree obtained by the prior mortgagees, was purchased by those mortgagees and subsequently re-sold to the present appellants. It is quite clear that when this property was sold in execution of the former decree, the present plaintiffs had had an opportunity to redeem the prior mortgage and had failed to take it. The property was, therefore, sold free of the burdens of both the mortgages. The present plaintiffs and the present appellants lost all their interests in the property. It passed into the hands of a third party who took it free and unincumbered. In our opinion, neither the appellants nor the plaintiffs-respondents in the present suit had any subsisting interest in that property after the date of sale. Therefore, when the property was re-purchased by the sons of Isri Rai, they obtained it free of all incumbrances. We have been referred to no rule of equity under which we ought to hold that the property having in this way returned to the representatives of the mortgagors, it has again become in their hands security for the mortgage-debt. In our opinion, it is no longer liable for that debt, the security having been destroyed when the property was sold in execution of the decree obtained by the prior mortgagees. We allow the appeal and modify the decree of the lower Court to this extent that the properties mentioned in paragraph 5 of the plaint will be excluded from the operation of the decree and the order for the sale thereof is set aside. The parties will pay and receive costs throughout in proportion to failure and success and the costs in this Court will include fees, on the higher scale. We extend the time for payment of the decretal amount up to the 21st of July 1910.
