JUDGMENT
M.L. Jain, J.
1. This second appeal is directed against the judgment of the learned District Judge, Udaipur, dated 27th day of April, 1972. This case related to a mortgage executed on Magh Sud 11, Samvat year 1911 for Rs. 35/-. The property in dispute is a house situated in Mohalla Maldass in Udaipur It was mortgaged by some Shivlal Kashiram and others, who died long ago and are now represented by their descendants Shrimati Shanta & others. The mortgagees were some Udaram and others who also died long ago and ate now represented by their descendants Madan Devi & others. Shri Kishan who was a descendant of the mortgagors and is since then dead had filed a suit of redemption on 1-6-1941. The litigation had several innings and ultimately, the suit was dismissed by the Civil Judge. Udaipur, by his judgment dated 28th February, 1956 on two grounds. The first ground was that the law of limitation was for the first time introduced in that area by the Mewar Limitation Act, 1932. It gave a grace period of 8 years in respect of old causes of action. That period was to expire in the year 1940. The Mewar Government thereafter, extended this grace period by 1 year in respect of the suits relating to by their notification No. 11584 dated 14-5-40 which was published in the Gazette of 3rd June. 1940. The learned Civil Judge was of the view that this being a suit for redemption was not covered by the aforesaid extension of the period and, therefore, the suit was barred by limitation having been filed in the year 1941. The second ground was that Nand Lal one of the descendants of the original mortgages and Mst. Keshar Bai widow of one of the descendants of the original mortgagee were made party as late as 26-5-1934. Though Nand Lal and Keshar Bai made an application that they had no objection to the grant of the decree in favour of the plaintiffs, but it was not a complex relinquishment because both Nand Lal and Keshar Bai had asked for payment of their shares in the mortgage money & because in the written statement filed by Nand Lal, he opposed the plaintiffs claim for redemption and also raised the bar of limitation. Both Nand Lal and Kesar Bai being the heirs of original mortgagees were persons interested in the security and no effective decree of redemption of the mortgage in question -could be granted without their having been impleded as defendants.
2. The learned District Judge referred to a decision of the Court reported in Khubilal v. Milaram Singh in which it has been held that the word ‘Len-den’ used in the notification of the Mewai Government referred to above covered redemption suits as well. The learned District Judge, therefore, held that the time available to the plaintiffs was up-to 3rd June, 1941, while the suit was filed on 1st June, 1941, and was thus within time. The second ground was rejected by him because during the course of litigation, the Additional Civil Judge had on 15-2-58 upon orders by the District Judge, had given a finding that Nand Lal and Kesar Bai were only proper parties and not necessary parties to the suit, and this finding was pot challenged before him. Eventually the learned District Judge, set aside the judgment and decree of the Civil Judge, dated 20th February, 1956, and passed the preliminary decree in favour of the plaintiffs. Aggrieved by this judgment, the present appeal has been filed.
3. The learned Counsel for the appellant has canvassed before me that the suit was barred by limitation because Nand Lal and Kesar Bai were impleaded after the period for their inclusion had expired. He, further submitted that the mortgage deed was not produced in original and that the mortgage was not admitted by two of the defendants, namely; Chhagan Lal and Laxmi Lal. No permission for leading secondary evidence was obtained. The mortgage therefore cannot be said to have been proved on the basis of a copy of the original deed.
4. I have considered over these objections and it appears to me that it is too late in the day to question the existence of the mortgage, the same having not been questioned before the learned District Judge. The learned Civil Judge had found that the denial of Laxmi Lal was no denial being a vague one, while Chhagan Lal had admitted the existence of the mortgage but had pleaded ignorance about its details. As regards the late impleading of Mst. Kesar Bai and Nand Lal, it is only a question of non-joinder of a roper party Both the Courts have held that Nand Lal and Kesar bai were proper but not necessary parties. According to Order 34, Rule 1, all persons having an interest in the mortgage security shall be joined as parties subject to the other provisions of the Code. Order 1, Rule 9 as it stood before its amendments provides that no suit shall be defeated by reason of the misjoinder or non-joinder of the parties and the 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. I, therefore, agree with the learned District Judge, Udaipur, that both Nand Lal and Kesar Bai hiving been held to be only proper parties, their nonjoinder cannot defeat the suit of redemption.
5. Lastly, the learned Counsel for the appellant made an application under Order 41, Rules 2 & 3, CPC for amending the memo of appeal in order to urged a new ground that one Shyam Lal s/o Chhagan Lal, who died on 22-6-58 was not brought on record within the period prescribed for that purpose and the whole suit should abate otherwise two conflicting decrees will come into existence out of which one will not be binding upon Shyam Lal. This application cannot be allowed nor can this ground be allowed to be urged at this stage because it is a question of fact. This should have been agitated before the learned District Judge.
6. I, therefore, see no force in any of the contentions aid in this appeal. It is hereby dismissed with costs.
