HOBHOUSE, J. - (1.) THE respondents to this appeal represent the plaintiffs below, who instituted their suit on January 24,1889. The defendant below is now represented by the appellant. The plaintiffs stated that on March 28, 1877, one Nagappa, whose heirs they are, mortgaged land to the defendant to secure the sum of Rs. 3000; and they prayed for accounts and redemption of the mortgage.
(2.) THE only defence which need now be considered was that in a suit instituted against Nagappa by a creditor of his named Vithal a decree was obtained, in execution of which Nagappa's interest in the property was put up for sale; that it was purchased by the defendant on June 9, 1880, and that on October 11, 1880, possession was given to the defendant and had continued with him ever since. The plaint was wholly silent about this sale. The written statement went on to suggest that the plaintiffs might possibly contend that the sale was illegal because it took place without the plaintiffs being joined in the certificate as heirs. The defendant said that he waited to hear whether the plaintiffs would make any such case, but that if they did he had an answer to it; and he; pleaded by anticipation that the legality of the sale could not be impeached in the present suit, one reason being that Vithal, the decree-holder, was no party to the suit. Finally, the defendant put in a distinct plea that the claim for redemption cannot be maintained unless a suit is brought to set aside the sale. The plaintiffs persisted in their suit according to its original frame. Eleven issues were settled by the First Court. The first issue was whether the mortgage debt merged in the subsequent purchase. In point of form that issue was not adapted to the facts of the case; nor, as it was treated by the First Court, was it adapted in point of substance. There was no issue adapted to examine the propriety of the execution proceedings.
(3.) THE First Court dismissed the suit on the ground, as the learned judge expressed it, that the mortgage merged in the purchase. The plaintiffs appealed. They complained that proper issues had not been stated, and that they had been prevented from tendering evidence on points connected with the regularity of the execution proceedings. The defendant made objections to the same effect. But no further issues were stated, and no further evidence was given.;