Dhavle, J.Brijbehari Lal, the adopted son, and Jaibehari Lal, the natural son of Kunjbehari Lal, sold to Mohan Ram and three brothers of his their moieties in 16 annas of mauza Misraulia and 14 annas of mauza Khurrhi by two sale-deeds of 25th June 1905. The vendors also executed an ekrarnama each at the same time guaranteeing a good title and quiet possession, and charging upon his half-share in mauza Gheora, tauzi No. 5310, pattis Nos. 1-3 and certain other properties (among which it is only necessary to mention a house in Arrah in respect of the ekrarnama of Jaibehari Lal) on failure of consideration that may occur in case of the purchasers dispossession, together with any costs and damages that they may incur in defending the title.

2. In 1918 one Mirza Ali Hussain Beg succeeded in dispossessing the purchasers from Khurrhi notwithstanding the opposition offered by them in the Courts. The purchasers, or rather the joint family of which they are members, thereupon brought the two suits, out of which these present appeals arise, for recovery of the money charged upon Gheora, the house in Arrah, and other properties. Jaibehari was upon his death succeeded by Brijbehari, who was impleaded as one of the defendants in both the suits. The appellant Mt. Chanda Bibi was also impleaded as a defendant in the two suits on the allegation that she was a subsequent purchaser of mauza Gheora. In the suit based on Jaibeharis ekrarnama Amir Chand and others were impleaded as defendants 2 to 6 on the allegation that they were subsequent purchasers of the house in Arrah.

3. Mt. Chanda Bibi, whose own purchase of mauza Gheora is dated 1911, set up in defence a usufructuary mortgage taken from the owners by one Srikishan as long ago as 1899. The lower Court held that this defence failed because her vendor Mahabir Chand, son of Srikishan, who had succeeded in 1909 to the mortgagors interest in the property from his mother Mt. Dhana Bibi, the purchaser at a Court sale in execution of a money decree in 1908, "did not think of keeping alive the rehan right but extinguished it clearly."

4. As regards the Arrah house, the learned Subordinate Judge held that defendants 2 to 6 of the suit on Jaibeharis ekrarnama were prior purchasers. The suits were accordingly decreed in respect of mauza Gheora; and against this part of the decision. Mt. Chanda Bibi has preferred two appeals, No. 96 of 1929 (out of Title Suit No. 47 of 1927 which was numbered No. 56 of 1928 on transfer) and No. 67 of 1930 (out of Title Suit No. 48 of 1927, which similarly became No. 57 of 1928). In both these appeals the plaintiffs respondents have filed cross-objections as regards the interest on their money from the date of institution of the suits up to the date of the decrees which is not to be found in the decrees. In appeal No. 67 of 1930, arising out of the suit on the ekrarnama of Jaibehari, plaintiffs cross-objection also challenges the finding of the lower Court that defendants 2 to 6, who are on the record as co-respondents, are prior purchasers and that plaintiffs cannot therefore proceed against the house for the realisation of their claim.

5. Dealing first with the appeals, two points have been urged on behalf of the appellant, Mt. Chanda Bibi: (1910) 32 All 1 that she is entitled to stand on Srikishans mortgage of 1899 and (2) that the ekrarnamas do not entitle the plaintiffs to proceed against mauza Gheora for the, dispossession which was admittedly effected by Mirza Ali Hussain Beg on the basis of a charge prior not only to the sale of the mauza by Brijbehari and Jaibehari but also to the acquisition of that mauza by them. The argument of the appellant as regards the mortgage of 1899, which itself is undisputed, is that in the circumstances of the case the lower Court was wrong in requiring the appellant to show that the mortgage had been kept alive for use as a shield against the ekrarnama obtained by the plaintiffs-respondents. Srikishan appears to have died in or about 1905, when Mahabir got himself entered in the Collectors D register as mortgagee, in place of his father, by inheritance. Dhana Bibi, it is undisputed, purchased the equity of redemption in 1908, and on her death in 1909, Mahabir took that interest as her son and heir and thus became full owner and thereupon got himself entered in the Collectors D register as proprietor of the mauza, instead of the former entry of his name as mortgagee.

6. At or after the combination of the interests of the usufructuary mortgagee and the mortgagor Mahabir in 1909 there was no declaration by him that the mortgage was to continue to subsist.

Sir Sultan Ahmad, for the appellants, has argued that Section 101, T.P. Act, as it stood before the amendment of 1929, lays down two independent exceptions to the rule of merger when the owner of a charge or other incumbrances on immovable property becomes absolutely entitled to that property, and that the second of these exceptions "(unless) such continuance would be for his benefit" will apply, irrespective of any presumed intention, whenever it appears that there was in fact (as there was in these cases) a subsequent incumbrance against which the prior charge would be required as a shield.

7. He has cited Baldeo Prasad v. Uman Shankar (1910) 32 All 1, and Ram Sarup v. Ram Lal AIR 1922 All 394 as instances in which a prior mortgage was so used in reliance on the second exception. Against this the respondents have cited Jugal Kishore v. Ram Narain (1912) 34 All 268 and Bat Rewa v. Vali Mahomed Miya Mahomed AIR 1923 Bom 211 ; but these cases are easily distinguishable on the facts as there was in fact no subsequent charge or mortgage in them. It is however true that in Jugal Kishores case (1912) 34 All 268 it was held that the point of time to be regarded in considering the question whether an incumbrance should be deemed to continue to subsist on the ground that its continuance was for the benefit of the person who has acquired the property, is upon the authorities, the date of the acquisition of the property.

8. It is also true that in Bai Rewas case AIR 1923 Bom 211 , the words "continuance would be for his benefit" were taken to be "merely a guide to the intention of the owner," and it was held that the section throws the onus on the owner to prove circumstances from which it can be inferred that it was to his interest to keep the charge alive, so that at the time of the transaction that was his intention. But these cases were distinguished and doubted in Sonaulla Karikar v. Abu Sayad Mohammad Ismail AIR 1980 Cal 530, where reference was made to Sir Rashbehari Ghoses construction of the section: see p. 524 of Ghoses Law of Mortgage, 5th Edn., and it was observed that

the cases which have held that the non-application of the section depends upon the presence of the intention at the date of the combination of the two interests, have overlooked the last clause of the section, which is in the disjunctive.

9. Their Lordships of the Judicial Committee however in Malireddi Ayyareddi v. Gopalakrishnayya AIR 1924 PC 36, construed the section to enact that

if there was no indication to the contrary, the owner has intended to have kept alive the previous charge if it would be for his benefit.

If intention is read into the second exception, the question may arise to what point of time the intention is to be referred and whether the exception will apply where the owner has no knowledge of a subsequent charge at the time he acquires the property; on the latter part of this question there seems to have been some divergence of judicial opinion.

10. On the facts and arguments before us, however, the exact construction of the second exception does not really arise, for it is undisputed not only that there was a usufructuary mortgage in 1899 taken by Mahabirs father Srikishan, but also that Mahabir was aware of it before he succeeded to the equity of redemption purchased by his mother, and that from such knowledge it must be presumed, unless the contrary is shown, that Mahabir did intend to keep the mortgage alive. It is further undisputed that, even though the continuance of the mortgage would be for the owners benefit, there is nothing in the law to prevent him--madly, it may be--from extinguishing the mortgage or surrendering his priority under it; and the position taken up by the plaintiffs-respondents is that Mahabir had in fact done so, as has indeed been found by the lower Court. In support of this position they have relied on three documents.

11. The earliest of these documents is Ex. 4, a compromise of 1907, to which Mahabir was a party and which provides, among other things, that the ekrarnamas of 25th June 1905 "may be affirmed as binding and operative" "bar-har-hal jaez wo qayam rakha jai." This compromise was arrived at in a title suit No. 146 brought by Mohan Ram and his brothers in 1906 on finding that the properties purchased by them from Brijbehari and Jaibehari had been taken by others. The reliefs claimed in the suit were two-fold: one branch related to the establishment of the plaintiffs title to the properties purchased and sought their recovery, and the other asked only in the alternative, for refund of the consideration money and its recovery from the properties mortgaged by the ekrarnamas, in priority to Mahabirs claim under the usufructuary mortgage of 1899 and also to the purchase of the house in Arrah by the vendor of the present defendants 2 to 6, an item which will have to be dealt with when I come to the plaintiffs-respondents cross-objection.

12. The compromise entitled the plaintiffs to possession of Misraulia and 14 annas of Khurrhi on payment of Rs. 1,500 to certain defendants in that suit. The question therefore whether they were entitled in the alternative to recover the consideration money and to do so by proceeding against the mortgaged properties, did not directly arise on the occasion. The compromise nevertheless dealt with the claim to this alternative relief to the extent of providing that the ekrarnamas were to be valid and operative in any event ("ba-har.hal"). The zarpeshgi deed in favour of Mahabir also was however affirmed --declared genuine ("sahin wo asli") by the compromise.

13. There is really nothing in the circumstances of the compromise to give the ekrarnamas which were affirmed any priority over the zarpeshgi deed which was also affirmed; and it would appear from the compromise that the relative rights of the parties under these documents, whatever they might be, were merely reserved--compare Ram Bujhawan Prasad Singh v. Natho Ram AIR 1923 PC 37. It has been urged on behalf of the plaintiffs-respondents that Mahabir may have given up his priority because he may not have thought that it would ever be necessary for the plaintiffs to seek their remedy against mouza Gheora, but this contention can hardly be accepted because it is at least as probable that the plaintiffs themselves may have been under a similar impression, and may thus have been content, instead of securing any priority over the zarpeshgi deed, to leave relative priorities alone.

14. It does not, in fact, seem to have been contended in the lower Court that this compromise of 1907 had any bearing on the relative priorities under the ekrarnamas and the zarpeshgi deed. In my opinion the compromise in question does not support the contention of the plaintiffs-respondents that Mahabir had agreed to waive his priority under his fathers usufructuary mortgage in favour of the plaintiffs with their ekrarnamas; the affirming of the sale deeds and ekrarnamas meant no more than that the other parties to the compromise would no longer question the reality of the plaintiffs title to the mauzas purchased and of their right, should occasion arise, to proceed against Gheora.

15. There was of course no question of any extinction of the usufructuary mortgage u/s 101 at that time, as Mahabir had not yet come into the equity of redemption.

The next document relied upon by the plaintiffs-respondents is Ex. D, the Collectors D register. Here the plaintiffs-respondents have in their favour the view of the lower Court that the conduct of Mahabir in getting his name as mortgagee removed from the register and getting himself recorded instead as proprietor "shows clearly that he extinguished the rehan right and never thought of its continuance."

16. It seems to me impossible to accept this view as correct, for the plaintiffs-respondents have utterly failed to show how Mahabir could have remained in the register as both mortgagee and proprietor at the time when he was proprietor pure and simple to all the world, except of course to holders of mortgages subsequent to that of Srikishan of whom there is no trace in the register. The lower Court has also referred to the failure of the appellant to produce the survey khewat to show that any khewat was prepared in respect of Mahabirs "rehandari interest," but as it is undisputed that the owner gave a usufructuary mortgage in 1899 to Srikishan, and that Mahabir was aware of this mortgage, it was not necessary for Mahabirs purchaser, the appellant, to produce any such paper.

17. The plaintiffs-respondents ought to have produced the khewat if they thought that there might be something in it helpful to them. Prima facie, even if the khewat did not mention the mortgage of 1899, that would not go against Mahabir for the same reason as the disappearance of the mortgagee interest on its replacement by the proprietary interest in the Collectors D Register. In my opinion the entries in the D register are of no assistance to the appellants and do not warrant the inference that Mahabir extinguished the mortgagee right on succeeding to the equity of redemption. This is rendered all the more indisputable by she fact that the undischarged mortgage bond is produced by his purchaser, the appellant.

18. The third document that has been relied upon by the plaintiffs-respondents is Mahabirs sale deed in favour of the appellant. This document does not refer to the mortgage lien of 1899, and it has therefore been urged that that lien has not in fact been transferred to the purchaser. But the sale deed conveys to the appellant all the existing rights of the vendor, and after reciting that he is in possession and occupation of the property as absolute proprietor, makes the purchaser his representative in interest. It reserves no rights in favour of the vendor and contains nothing from which any intention to do so may be inferred; and therefore u/s 8, T.P. Act, all the rights of the vendor would pass to the purchaser, even apart from the express conveyance of "all the existing rights" under the deed.

19. It is also clear that Mahabir not only put the appellant into possession but also gave her the undischarged mortgage bond. A witness, Bachha Lal, was called on behalf of the appellant to make out that the sale deed was intended to cover the "rehani right." This evidence was rightly rejected by the lower Court, and is not relied upon by Sir Sultan Ahmad. But Bachha Lal also says that he got the original mortgage bond from Mahabir at the time and made it over to the appellant; and this story stands on a different footing because it is supported by the production of the deed by the appellant, while on the other hand, the plaintiffs-respondents have not been able to explain how else the mortgage bond could have come into the possession of the appellant.

20. Mr. Sarju Prasad in his strenuous argument for the plaintiffs-respondents on this point also urged that the right to keep the mortgage alive was personal to Mahabir and incapable of transfer to a purchaser. This contention can be shortly disposed of by considering what would have happened if Mahabir had died without transferring the property. It could not, I conceive, have been said in that hypothetical event that the right, if any, to use the mortgage as a shield, was at an end and could not be availed of by his heir.

21. I see no reason why a purchaser for value, like the appellant, or even a donee of all the rights of Mahabir, or any other persons standing in his shoes, apart from any question of inheritance, should be worse off as against a later mortgagee. According to the plaintiffs-respondents themselves the exercise of the right to keep the mortgage alive depended on Mahabirs intention at the time of the union of the mortgagee and mortgagor interests in him on his mothers death. It is thus not the right to keep the mortgage alive, but the right, should the mortgage have been kept alive by Mahabir (as I have shown must be taken to be the case), to use it as a shield against the later incumbrance, that is really in question. The learned Subordinate Judge considers that

if there was any term to transfer the rehani right at the time when the kabala was executed, one would expect a clear insertion of those terms in the recitals of the kabala (Ex. B).

22. In my opinion, no such specific mention of the mortgage in the kabala was necessary, for the reasons already indicated, and the plaintiffs-respondents are not entitled to have the mortgage of 1899 ignored or postponed, even though the kabala says nothing about it. It has been pointed out on their behalf that the price mentioned in the sale deed is much smaller than the amount covered by the mortgage bond; but the sufficiency or otherwise of the consideration is a matter for the parties, and not for strangers like the plaintiff-respondent; the transaction does not, having regard to the close relations between the parties, appear to have been on a business footing entirely; and the absence of the reservation of any rights in favour of Mahabir in his sale deed together with his delivery of the mortgage bond to the appellant shows clearly enough that the appellant was in fact placed in the same position as Mahabir and is entitled to set up the mortgage bond as a shield against the claim of the plaintiffs-respondents.

23. The result is that the decree passed by the lower Court in favour of the plaintiffs-respondents must be made subject to their repaying to the appellant the amount of the mortgage of 1899 as in a suit by a puisne mortgagee against a prior mortgagee as well as the mortgagor. The second point urged on behalf of the appellant does not in this view require elaborate consideration. The contention of the appellant is that the ekrarnamas secure the purchasers, not against prior liens such as what was enforced by Mirza Ali Hussain Beg, but only against such as were created by the vendors or parties claiming under them. This is rested on the provision in the ekrarnamas relating to the property sold passing out of the possession of the vendees

by reason of any claim (based) on the right of inheritance or minority, or brought under any deed of sale ... zarpeshgi deed ... temporary lease ... in short, under any deed or due to anything (kar-rawai, literally any act or proceeding) ... done by me or my heirs (or) representatives....

24. As a matter of ordinary Urdu, I believe the word "hamare" (rendered "by me" in the translation) goes not only with "anything" but also with "deed;" but this does not by any means conclude the matter. The vendors have said a little earlier in the ekrarnamas that the property is "so far" "(is waqt tak)" free from defects and is subject to no incumbrance, is free from mortgage incumbrance in every way and none but ourselves is the heir and claimant (sic in the official translation "Haqdar" in the original means rather entitled to) "to the same." It is thus plain that the vendors set out to guarantee a title free from all defects whether or not they themselves had anything to do with them. There is also no dispute that in a subsequent clause the ekrarnamas do secure the purchasers from dispossession under a title paramount to that of the vendors. The learned Subordinate Judge rightly read each ekrarnama as a whole on the principle that

every part of the agreement should agree with every other and no part should be taken as meaningless or redundant.

25. When this is done, it seems clear that the plaintiffs claim cannot be defeated on the ground that their dispossession was due to the acts of a third party and not of their vendors. The failure of the appellant on the point does not however make any difference to her success on the first point, which entitles her to priority over the plaintiffs-respondents and to an appropriate modification of the decree of the lower Court. Coming now to the plaintiffs-respondents cross-objections, it appears from the decrees that they have been given interest at the bond rate up to the date of suit only and that no interest has been allowed to them from the date of suit to the date of judgment, viz. from 10th August 1927 to 27th February 1929. All that has been said in answer to the plaintiffs-respondents claim to interest for this period of over 18 months is that the matter is one of discretion. One looks in vain in the judgment of the lower Court for any indication that that Court, assuming that it had any discretion on the point, chose in fact to exercise it. None of the respondents has been able to point to any circumstances in the case why the plaintiffs-respondents should be deprived of interest at the bond rate for this period. The cross-objections as regards the interest must therefore be allowed, and the decrees of the lower Court modified by including interest on the principal at the bond rate for the period indicated.

27. I now come to the cross-objection filed by the plaintiffs-respondents regarding the house in Arrah to which, according to the findings of the learned Subordinate Judge, those respondents who were defendants 2 to 6 in Suit No. 57 below are entitled as prior purchasers. It has been urged on behalf of these respondents that such a cross-objection does not lie under Order 41, Rule 22, which entitles any respondent, though he may not have appealed from any part of the decree, not only to support the decree on any of the grounds decided against him in the Court below, but also to take any cross-objection to the decree which he could take by way of appeal. It has been often pointed out that the word "cross-objection" seems appropriate as regards a question between the appellant and a respondent, but inappropriate as regards a question between two co-respondents. As Jessel, M.R., pointed out in In re Cavanders Trusts (1881) 16 Ch D 270 an appeal on a point which does not affect the original appellant cannot be a cross-appeal.

28. The word "cross-objection" appears, moreover, to have been deliberately substituted by the legislature for the word "objection" that occurred in the older provision, Section 561 of the Code of 1882. Had the matter rested here, the conclusion would perhaps have been irresistible that Order 41, Rule 22, is confined to a respondents objection against the appellant and does not extend to his objections against a co-respondent. A plausible ground for arguing that the respondent is not so restricted is furnished by the fact that the legislature at the same time extended the service of notice of such objection from the appellant to "the party who may be affected by such objection" (see sub-r 3). This alteration does not, however, seem sufficient to make that a cross-objection, which is not a counter-attack, to the appeal.

29. The extension of service of notice to the party who may be affected by such objection" is not unintelligible in view of the fact that from their presence on the record, the co-respondents may be presumed to be interested in the appeal and thus, in some cases at any rate, to be also interested in the cross-objection (properly so called) of another respondent. The High Courts of Calcutta, Bombay and Allahabad are not the only superior Courts in the country that have held that even under Order 41, Rule 22 of the present Code the right of a respondent to urge cross-objections should, as a general rule, be limited to his urging them against the appellant. The contention of the plaintiffs-respondents, that they are entitled, as a matter of right, to urge a cross-objection against another respondent is clearly inconsistent with this view. In Madras it has been definitely ruled by a Full Bench: see Munisamy Mudali v. Abbu Reddi AIR 1915 Mad 648, that under the present rule a respondent can claim relief against a co-respondent by way of cross-objection; but this was on the footing that it is in accordance with the Madras practice under the old Section 561 and that their Lordships did not read Order 41, Rule 22 as indicating that the framers of the rules intended to make it clear that the practice should be otherwise. It will, moreover, appear from the judgment of Bakewell, J., in referring the matter to the Full Bench, that the question was regarded as "one not of the jurisdiction of the Court but of practice."

30. The matter was considered in this Court in the Official Trustee Bengal v. Charles Joseph Smith AIR 1920 Pat 77, where Dawson Miller, C.J. (Mullick, J. concurring) pointed out that the Madras decision does not refer to Order 41, Rule 33 (which was added by the legislature in 1908) or its bearing on Order 41, Rule 22.

The Calcutta decisions in Jadunandan Prosad Singh v. Koer Kallyan Singh (1912) 13 IC 653, Mathura Mohan Saha v. Ram Kumar Saha AIR 1916 Cal 136 and Shib Chandra v. Dulcken AIR 1918 Cal 13, which were refereed to in Official Trustee, Bengal v. Charles Joseph Smith AIR 1920 Pat 77, do not appear very clearly and definitely to lay down that Order 41, Rule 22 does not enable a respondent as a matter of right to urge cross-objections against a co-respondent.

31. But it still seems clear enough that what was held in the case from 5 Patna Law Journal is that a respondent has no such right, though the very wide discretion given by Order 41, Rule 33 will entitle the Court, in those exceptional cases where justice requires it, to entertain objections by one respondent against another. Mr. Mullick for the plaintiffs-respondents has endeavoured to distinguish the ruling from 5 Patna Law Journal by pointing out that the cross-objection sought to be urged in that case came not from the plaintiff (as in the cases before us, bu from a defendant. I am not impressed by this distinction; and in Gopal Misser and Others Vs. Partap Mandal and Others, another Bench of this Court declined to entertain a cross-objection by the plaintiffs-respondents against a co-respondent.

32. A cross-objection against the appellant stands on a different footing from an objection against a co-respondent; the former comes from a party who is content with the decree of the lower Court provided his opponent does not appeal, while the respondent who wishes to urge an objection against a co-respondent is, as a general rule, merely availing himself of an appeal by another party relating to other matters to urge at a late stage what he could and should have urged by way of appeal earlier. There is as little reason to drive the former to file an unnecessary appeal as there is to let the latter act beyond the period of limitation prescribed for appeals; and yet these would be the results if cross-objections were not permitted against the appellant or objections were permitted as a general rule between co-respondents.

33. I would, therefore, hold that the plaintiffs-respondents are not entitled, as a matter of right, to urge their so called cross-objection against those respondents who were defendants 2 to 6 in suit No. 57 below. But objections of this kind, not coming under Order 41, Rule 22, have been entertained under Order 41, Rule 33 in cases of an exceptional kind. In Kesho Prasad Singh Vs. Narayan Dayal and Others, the object of Order 41, Rule 33 was stated:

Speaking generally to be to enable the appellate Court, where its decision interferes with or modifies or extends the decision of the lower Court, to give effect to that decision by interfering, if necessary, even with the rights and liabilities of those who are not in fact appealing from the decision of the trial Court.

In view of this decision it is unnecessary to deal in detail with a large number of cases cited by the learned advocate for defendants 2 to 6 on the scope of Order 41. Rule 33.

34. Much stress was laid by him on Rukia and Another Vs. Mewa Lal , in which the learned Judges, after referring to several English and other cases, observe that

the rule is restricted to cases, where without disturbing the grounds upon which the judgment of the trial Court proceeds, the appellate Court considers that the decree should be modified in order to do justice to all the parties concerned, including such as have not set the law in motion.

It is, however, not clear from the cases referred to by their Lordships that the rule is so restricted; for they themselves seem to have recognized, see p. 71 of 51 All, that the jurisdiction conferred by the corresponding English rule, Order 58, Rule 4, will be exercised, where the result of the conclusions at which a Court of appeal has arrived affects the legal rights of the parties to the appeal in such a way as to demand a more extensive re-adjustment of those rights than that for which any of them had asked.

35. The interpretation adopted in the cases from Official Trustee, Bengal v. Charles Joseph Smith AIR 1920 Pat 77 and Kesho Prasad Singh v. Narayan Dayal AIR 1925 Pat 285 does not confine the rule to cases where the grounds of the judgment below are left undisturbed; and in the same volume of the Indian Law Reports, Allahabad, there is a case of Madan Lal and Others Vs. Gajendrapal Singh , in which one of the propositions laid down by the learned Judges regarding Order 41, Rule 33 in Rukia and Another Vs. Mewa Lal was doubted. Order 41, Rule 33 is undoubtedly expressed in wide terms and must be applied with caution, so as not to enable a litigant to avoid the provisions of other statutes such as the Limitation Act or the Court-fees Act. There can, however, be no hard and fast rule regarding the cases to which Order 41, Rule 33 may be applied; but one of the tests that may be usefully applied is (in the words of Mookerjee, J. of the Calcutta High Court):

Whether the questions which arise between the several sets of parties are so connected that one of them ought not to be allowed to reopen matters so far as he is concerned without opportunity allowed, in the interests of justice, to another to protect himself by urging his objections, even though they may be directed, not against the appellant, but against a co-respondent: (see Jadunandan Prosad Singh v. Koer Kallyan Singh (1912) 13 IC 653.

36. In the present case the plaintiffs-respondents were content with the mortgage-decree given to them by the lower Court with priority over the mortgage of 1899 set up by the appellant, though it negatived their superior claim to the house in the possession of defendants 2 to 6. If the appellants mortgage is now to be held to prevail over that of the plaintiffs, this conclusion itself plainly makes it necessary in the interests of justice that the claim of the plaintiffs to the house should be reinvestigated here. It was pointed out on behalf of these defendants-respondents that the plaintiffs would have had to pay court-fees if, instead of being content with the decree of the lower Court, they had chosen to appeal in respect of the house. This was undeniable, and the plaintiffs have now, with our sanction, paid the necessary court-fees. It cannot be said that they were evading the law of limitation, for there was nothing, in law, and reason alike, to prevent them from being content with the decree of the lower Court, and it is only when that decree is disturbed as against them that it becomes necessary for them to ask for a re-investigation of their claim to the house.

37. This, therefore, is a case of an exceptional kind in which we ought, in my opinion, to act under Order 41, Rule 33 and entertain the plaintiffs objection as regards the house at Arrah. (After dealing with the facts involved in the cross-objection, his Lordship held that in respect of the house in Arrah they were not entitled to priority over these defendants and the judgment concluded.) The result is that the appeals are allowed and the cross-objection allowed in part. The decree of the lower Court will be modified in two respects: (1) plaintiffs to have interest at the bond rate on the amounts decreed in their favour from the date of suit to the date of judgment; and (2) the mortgage decrees in favour of the plaintiffs to be made subject to their repaying to the appellant the amount of the mortgage of 1899, in favour of Srikishan, namely Rs. 8,000.

38. The appellant will be entitled to her costs in this and also in the lower Court from the plaintiffs who, in their turn, will be entitled to the costs of their cross-objection in respect of the interest from defendant 1 in each of the suits. Defendants 2 to 6 in suit No. 57 of 1928 will also be entitled to their costs in respect of the plaintiffs cross-objection regarding the house in Arrah.

Saunders, J.

39. I agree.