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Allahabad High Court
Jwala Prasad And Anr. vs Sher Singh And Ors. on 1 February, 1927
Equivalent citations: AIR 1927 All 488, 101 Ind Cas 775


1. We are informed that the respondent Hira Singh died on 7th November 1925. The appeal against him abates and is, therefore, dismissed.

2. The plaintiffs sued for sale and the defendants to the suit were Sher Singh and Puttu Singh. Hira Singh, a subsequent mortgagee, was made a party to the suit 12 years after the date of the mortgage, and so after the period of limitation for the enforcement of that mortgage had passed. The, lower Court was, therefore, correct in dismissing the suit against Hira Singh. In our opinion he was mistaken in dismissing the suit entirely.

3. Order 34, Rule 1, lays down that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage, but there is a proviso that this shall be subject to the provisions of the Code. There is another provision of the Code, O.1, Rule 9, that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and a Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The learned Judge of the lower Court was, therefore, bound to deal with the rights and liabilities of the plaintiffs on the one hand, and Sher Singh and Puttu Singh on the other. It has been held by that Court that the mortgage was effected by the manager of a Hindu family for legal necessity and a decree for sale must be passed against Sher Singh and Puttu Singh. In our opinion the learned Judge has not rightly interpreted the ruling of this Court in the case of Alam Singh v. Gokul Singh [1918] 35 All. 484. It was held there that the rights of a subsequent mortgagee are preserved, but there was no pronouncement as to whether a prior mortgage may or may not be enforced against what would remain after the charge of the subsequent mortgagee was satisfied. The ruling of Nath Lal v. Lala [1912] 9 A.L.J. 410 is in favour of a decree being passed against defendants brought on the record within time and the other cases cited by the learned Judge do not appear to be in point.

4. In the result we pass a decree for sale for the amount entered in the plaint against Sher Singh and Puttu Singh with costs of both Courts. The bond-rate of interest shall run up to six months from to-day’s date. The interest shall cease to run after that date. The suit is dismissed with costs against Hira Singh.

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