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Judgment
It seems to us that the answer to the question which has been referred to us should be in the affirmative.
This is in accordance with the practice which appears to have prevailed in this Court u/s 561 of the Code of 1882 and we do not read Order
XLI, Rule 22 as indicating that the framers of the rules intended to make it clear that the practice should be otherwise.
With all respect to the learned Judges who dealt with the question, in Jadunandan Prosad Singh v. Koer Kalyan Singh (1921) 15 C.I.J. 61 a
case which was decided under Order XLI, Rule 22 it seems to us more convenient to follow a fixed rule than to decide the question with reference
to the particular facts of the case in which the question is raised
We answer the question in the affirmative.
The memorandum of objections after the expression of the opinion of Full Bench came on for final hearing before Mr. Justice Bakewell and Mr.
Justice Kumarasami Sastri on the 5th November 1914.
JUDGMENT
We are both of opinion that the question of consideration has been already decided in proceedings, to which the 7th Respondent was a party :
and in which he had the opportunity of arguing the point : and that this question is res judicata and cannot be re-opened upon the hearing of the
memorandum of cross-objections. There is no evidence of fraud on the part of the mortgagee, or that the transferees of the mortgagee from him
had notice of any fraud.
The memorandum of objections is dismissed with costs. The time for redemption will be three months from this day.