JUDGMENT
Mallik, J.
1. This appeal arises out of a suit for recovery of money on a mortgage bond. Both the Courts below decreed the suit in full. Defendants 2, 4 ka, 4 kha, 4 gha, 4 uma have appealed to this Court.
2. There were two points taken before us on behalf of the appellants. First of all it was said that the decree was not sustainable inasmuch as the mortgage bond had not been proved in accordance with law. It appears that at the time of the trial of the suit three of the attesting witnesses were alive and it appears also that the plaintiff called one of these three witnesses and when this witness resiled the plaintiff proceeded to prove the document by other evidence. It was contended before us that as there were other attesting witnesses alive at the time it was incumbent on the plaintiff to try them before he was allowed to prove execution of the document by other evidence. I do not think there is much substance in the contention. As observed before the plaintiff did actually call one of the attesting witnesses then alive and it was only when that attesting witness resiled the plaintiff proceeded to prove the document by other evidence. This in my opinion was a full compliance with the provisions of Sections 68 and 71, Evidence Act. The first contention raised before us must, therefore, fail.
3. The second point that was taken on behalf of the appellants has more substance in it. It was said that the suit ought to have been dismissed as against defendants 4 ka, 4 kha, 4 gha and 4 uma (who were subsequent transferrees) inasmuch as they were brought on the record after the period of limitation of 12 years was over. This contention seems to me to be sound and must prevail ; under Section 22, Lim. Act, when a party is added after the institution of a suit the suit shall, as regards him, be deemed to have been instituted when he was so made a party. It appears that defendants 4 ka, 4 kha, 4 gha and 4 uma were brought on the record and made defendants in the case after defendant 2 had filed his written statement and this was admittedly more than 12 years after the money had become due and after the statutory period of limitation of 12 years. A considerable amount of argument was advanced on behalf of the respondent to show that Section 22, Lim. Act, could not apply to a case like the present one and a number of cases among which I may mention the eases of Mahamed Ishaq v. Akramul Huq [1907] 12 C.W.N. 84 ; Jaggeswar Dutt v. Bhuban Mohan Mitra [1906] 33 Cal. 425 and Imdad Ahmad v. Pateshri Partap Narain Singh [1903] 32 All. 241 were cited before us. But the point that has been decided in all those eases is that when a person who is a necessary party to a suit is brought on the record after the period of limitation the whole suit must fail. These cases, however, are no authority for the proposition that when a party who is not a necessary party brought on the record after the period of limitation no part of the suit not even the part as regards the party who is brought on record after the period of limitation can fail. On the other hand the case of Mathewson v. Ram Kanai Singh Deb [1909] 36 Cal. 675 is a clear authority against the point contended for on behalf of the respondent. In this case it has been laid down that Section 22, Lim. Act, does apply to a case even where a person is not a necessary party, but only a proper party to a suit and such a person cannot be added as a party after the expiry of the period of limitation as provided for by that section. On the authority of this I.L.R. 36 Gal. case I am of opinion that Section 22, Lim. Act, must be held to apply to the present case and if Section 22, Lim, Act, does apply to the present case there can be no getting over the difficulty about limitation so far as defendants 4 ka, 4 kha, 4 gha, 4 uma are concerned without invoking the aid of some of the saving sections of the Indian Limitation Act.
4. An attempt has been made by the respondent to show that the limitation in the present case as against these defendants was saved by the provisions of Section 18, Lim. Act. It was urged that the plaintiff came to know of the existence of the subsequent transfers in favour of these defendants only after the written statements of defendant 2 had been filed and these defendants were brought on the record within a short time after the plaintiff came to know of those transferees. It may be that the plaintiff had come to know of these transferees only a short time before these defendants were made parties to the suit. But that alone will not do for bringing in the aid of the provisions of Section 18 of the Act. Before the plaintiff could avail himself of the provisions of that section it was incumbent upon him to show that he had been kept out of that knowledge by means of fraud. But in the present case there was no allegation of any fraud of any kind much less any evidence to substantiate such fraud. S, 18, Lim. Act, could not, therefore, in my judgment, be of any help to the plaintiff and holding as I do that Section 22 applies to the case the suit as against defendants 4 ka, 4 kha, 4 gha, and 4 uma must be held to have been barred by limitation.
5. The result, therefore, is that the appeal is allowed in part. The decree of the lower Court as against defendants 4 ka, 4 kha, 4gha and 4 uma are set aside and the suit as against them will stand dismissed. The rest of the decree of the lower Court will remain intact. Defendants 4 ka, 4 kha, 4 gha, and 4 uma will get their costs from the plaintiff throughout. The plaintiff-respondent will get from defendant 2 his costs of this appeal.
Cuming, J.
6. I agree.
