Rangai Goundan alias Venkattai Goundan and Another vs Venkatammal

It is contended before us that the previous mortgage decree, though it became final against the plaintiffs when their application to set aside the ex

parte decree was dismissed, is not binding on any personal rights of the plaintiffs in the property as it is urged that they were made parties to the

previous litigation only as representatives of their deceased brother Venkata Goundan and not in their personal capacity. It is further argued that

they were not bound to put forward their individual right to the property in that suit and that the decree in it cannot he held to be res judicata

against them in this case where they claim in their own personal right. Reliance is placed for this argument on the casein Girja Kanta Chackrabutty

v. Mohim Chandra Acharjya 35 Ind. Cas. 294 : 20 C.W.N. 675 : 23 C.L.J. 587

But, on turning to the plaint and the, decree of the previous suit, we find these plaintiffs were made parties not only as representing their brother

Yenkata Goundan but also in their own personal capacity apparently with a view to bind them by the decree. The cause title mentions nothing of

their representative character, and it is only in paragraph 6 that it is referred to at all. Paragraph 5 alleges that they are made parties because they

are the brothers of the mortgagors. The property mortgaged and the property sought to be sold was the whole house and not any share in it, nor

merely the interest of the mortgagors; and the decree, as we, read it, directs the sale of the whole house. It is not denied that these plaintiffs could

have raised in the mortgage suit the plea that their shares were not properly mortgaged and should be exonerated. We think that the plaintiffs,

having been put on record not merely as representatives of Venkata Goundan but also in their own personal capacity as well, they ought to have

set up their right in that suit and that they are now barred by res judicata u/s 11 of the Civil Procedure Code, read with Explanation IV, from

setting them up.

The present case is clearly distinguishable from the case in Girja Kanta Ghackrabutty v. Mohim Chandra Acharjya 35 Ind. Cas. 294 : 20

C.W.N. 675 : 23 C.L.J. 587 as in that case the disputing defendant C was added to the mortgage suit only as a representative of his deceased

brother. We may observe that, with all respect, we are unable to follow the dictum of the learned Judges in that case that the question of the

validity of the mortgage as against C who was not a party thereto could not have been properly raised and determined in the suit to enforce the

security, even if he had been put on record as a person interested in his own right in the mortgaged property. This view seems to be based on the

opinion expressed on the authority cited there, viz., Jaggeswar Butt v. Bhuban, Mohan Mitra 33. C.P 425 : 3 C.L.J. 205 that the term mortgaged

property'' means ""the interest the mortgagor is competent to transfer by way of mortgage by his deed."" In our view, the present plaintiffs were

proper parties to the mortgage suit as they claimed an interest in the house mortgaged and they are bound by the decree directing its sale. In this

view, it is not necessary to express any opinion on the question of limitation. No argument has been addressed to us based on the ground of fraud

as vitiating the decree.

In the result, the second a appeal fails and is dismissed with costs.