Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Karrar Husain And Anr. vs Jai Narain Rai And Ors. on 10 December, 1926
Equivalent citations: AIR 1927 All 290
Author: Ashworth


Ashworth, J.

1. The only question that arises in this second appeal is whether the trial Court and the lower appellate Court were correct in holding in this suit for redemption of a mortgage the failure of the plaintiffs to implead as defendants the transferees of some of the mortgagees interested and the grandson of one of the original mortgagees is fatal to the suit. The lower Courts relied upon a decision of a Judge of this Court reported in Saeed-ud-din Khan v. Hira Lal [1914] 12 A.L.J. 619. It was there held that a mortgagor must redeem the property in the ands of all the mortgagees or their representatives and that his failure to implead all such was fatal to the suit. The appellants rely upon another decision of a single Judge of this Court reported in Prashadi Lal v. Laiq Singh A.I.R. 1924 All. 107. That case; however, is to be distinguished from the present one inasmuch as it Was possible in that case to pass a decree for sale of part of the mortgaged property only in which the absent person had no interest. The proper view appears to be that Order 34, Rule 1, of the Civil P.C., is to be read subject to O.1, Rule 9, that is to say, the failure to join a person interested in a mortgage whether that failure be in a suit by the mortgagor for redemption or in a suit by the mortgagee on the foot of the mortgage, will not be fatal to the suit if a decree can be passed that will not injuriously affect the absent party.

2. It has been urged that, at any rate, the lower Court should have given the plaintiffs an opportunity to have the absent persons joined as mortgagees. It has not been brought to my notice that the plaintiffs ever asked the Court to do so and the question whether those persons were necessary parties formed the subject of an issue and arguments. In these circumstances it does not appear to me that the decree of the lower Courts should be set aside and the trial Court ordered to issue notice now. There is a cogent reason against so doing. The suit as against these persons would be time barred as the plaintiffs had brought their suit just before the expiration of 60 years from the date of the mortgage. Reliance has been placed by the appellants counsel in the case reported in Shivubai Rajaram Shete v. Siddheswar Martand Hegde A.I.R. 1921 Bom. 152. That case, however, was a case where a person seeking to redeem a mortgage failed to join another person interested as co-mortgagor in redemption, that is to say, the person absent was merely what is called a pro forma defendant. The considerations applicable to such a case are obviously different to a case like this where the absent person is a real defendant with an interest to oppose the suit.

3. For the above reasons I see no reason for interference with the decree of the lower Courts and dismiss the appeal with costs.

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