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A mortgagee, who holds the mortgaged property also as lessee from the mortgagor, sues the mortgagor to recover Rs 3,000 being the amount of the mortgagee-debt. At the date of the suit the mortgagee owes Rs 4,000 to the mortgagor for rent under the lease, and this sum the mortgagor claims to set-off against the mortgage-debt under an express agreement in that behalf. The agreement is not proved, and a decree is passed against by mortgagee with the leave of the court. The mortgagor then sues the mortgagee to have sale set aside, and for a declaration that the mortgage-debt is extinguished, now claiming that a general account may be taken as between him and the mortgagee, and that in taking such account the rent due to him may be set-off against the mortgage-debt.
The suit is barred, for the mortgagor ‘might and ought’ not to have set up that claim in the alternative in the former suit
The suit is not barred, for the mortgagor ‘might and ought’ to have set up that claim in the alternative in the former suit
The suit is barred, for the mortgagor ‘might and ought’ to have set up that claim in the alternative in the former suit
None of these
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