Sadasiva Aiyar, J - (1.)The plaintiffs 1, 4 and 5 are the appellants mentioned in the memorandum of Second Appeal preferred to this Court. As it appeared that the 3rd plaintiff s name was left out by an oversight of the appellants learned vakil, we allowed the memorandum of Second Appeal to be amended by adding the 3rd plaintiff s name also as an appellant.
(2.)The suit was brought upon a hypothecation bond executed by the 1st defendant in August 1912. Four items of property were hypothecated out of which item 2 was afterwards sold by the 1st defendant to the 2nd defendant. The 2nd defendant then hypothecated it to the 3rd defendant. Defendants 2 and 3 remained ex parte both in the court of first instance and in the lower appellate court. The 1st defendant in his written statement described the plaint bond as "the suit mortgage debt bond." The plaintiffs in their plaint claimed a charge on the properties and sued for sale on the basis of that charge. If the 1st defendant had intended to plead that the document did not create a charge owing to its alleged invalidity as a mortgage, he ought to have raised that plea expressly in his written statement. Under Order VIII, Rule 5, C.P.C. "every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person who is under a disability." The allegation of fact in the plaint that the mortgage bond gave the plaintiffs a right to bring the properties to sale as creating a charge on the property not having been denied specifically or by necessary implication must be deemed to have been admitted by the 1st defendant. The lower appellate court therefore used its discretion wrongly in requiring proof or rather in taking the validity of the document is a mortgage is not proved on the evidence on record even as against the 1st defendant. Of course under the proviso to Order VIII, Rule 5, "the court may in its discretion require any facts so admitted to be proved otherwise than by such admission." But that discretion should usually be exercised by the court of first instance and would be exercised properly in cases where the court of first instance suspects on prima facie grounds that the admission was made collusively or in order to evade a rule of public policy. However I shall for. the purposes of the decision of this case even assume that the first defendant did not admit the validity of the document as a mortgage.
(3.)As regards defendants 2 and 3 they were exparte (as I have said) in both the courts below and had not appealed against the decree of the court of first instance directing item 2 also (that property in which alone they were interested) to be sold for the mortgage amount and I think that the lower appellate court again used its discretion (under Order 41, Rule 33) in a wrong manner in interfering with the District Munsif s decree so far as it affected the ex parte defendants 2 and 3 on a mere technical ground. However I shall again assume that its discretion in this matter also was not exercised improperly. Even then it seems to me that the Lower Appellate Court should have given the plaintiffs an opportunity to fill up the alleged gaps in the evidence which were not at all considered material by the first Court and should in the language of the proviso to Order VIII, Rule 5 have "required evidence" of the facts which it considered not proved before finding them against the present appellants. But it is unnecessary to deal with this point also further.