SUBBARAMA REDDIAR Vs. RAGHAVA REDDI

JUDGEMENT

(1.) This is an appeal under Clause 15, Letters Patent against the judgment of Viswanatha Sastri J., dismissing S. A. No. 1178 of 1947, with his leave. The appeal arises out of a - suit-brought by the-original respondent to recover the amount due-under a mortgage deed dated 24-1-1927, executed by one Muthu Goundan to one Kanhayya Reddi for Rs. 1000. The respondent claimed under art assignment from the original mortgagee. The mortgaged property comprised three items. Subsequent to the mortgage, by a sale deed dated 4-6-1941, Muthu Goundan conveyed to defendant 1 a moiety of items 1 and 2 of the mortgaged properties. On the same day, a brother of Muthu Goundan sold. the other moiety in these items to defendant 2. The third item continued to remain with the mortgagor. The suit was brought against the purchaser as^ defendants 1 and 2, hut the original mortgagor was not made a party. The plaint schedule, however, included item 3 also, though the mortgagor who-was in possession of it was not made a party. But at the time of the trial, the plaintiff's vakil made-an endorsement on the plaint that he did not claim any relief against item 3 and that that plaintiff exonerated it from the suit. The suit was,, therefore, tried only against defendants 1 and 2. The learned Subordinate Judge who tried the suit dismissed it as against defendant 2 as he held that the mortgage executed by Muthu Goundan was not binding on his brother whose share in items 1 and 2 was purchased by defendant 2. That dismissal became final because the appeal filed by the plaintiff was dismissed as out of time by the learned District Judge of North Arcot. The-learned Subordinate Judge decreed the suit against the share of Muthu Goundan in items 1 and 2 in the hands of defendant 1. There was an appeal by defendant 1, but that was dismissed by the learned District Judge, He then preferred a second appeal' to this court, viz., S. A. No. 1178 of 1947, which was also dismissed by Viswanatha Sastri J. Pending-the Letters Patent Appeal, defendant 1 appellant died and his legal representatives were also brought on record.

(2.) Mr. K. Bhashyam Aiyangar, learned counsel for the appellants, raised two contentions in the main. But both the contentions were founded on the fact that the original mortgagor, Muthu Goundan, had not been wade a party to the suit. The first contention was that defendant 1 was entitled to the right of marshalling conferred by Section 56, T. P. Act as it now stands after the amending Act of 1929. The view taken by Viswanatha Sastri J. was that the section as it now stands does not apply to the present case which is covered by the section as it stood before the amendment. The section as it stood originally was as follows:

(3.) Mr. Bhashyam Aiyangar's next contention was a plea of nonjoinder. Under Order 34 Rule 1, C. P. C. all the persons interested, in the equity of redemption are to be made parties. So the mortgagee could not he allowed to deliberately exclude the mortgagor himself who certainly was interested in the equity of redemption so far as item 3 was concerned and claim to recover the entire money from the purchaser only. So his argument ran. Having regard to the terms of Order 1, Rule 9, C. P. C., learned counsel could not insist upon a dismissal of the suit. But he argued that even if the suit be not dismissed, the mortgagee should, not be given anything more than a proportionate share of the mortgage money, to be recovered from the part of the mortgaged property in the hands of the purchaser. Mr. Bhashyam Aiyangar sought to rely upon a decision of this court in - 'Periakaruppa Pillai v. Satyanarayanamurthi', AIR 1937 Mad 136 (B), as lending him some support to his argument. But we think that decision has no application whatever to the facts of this case. That was a suit for redemption, and it was held that in spite of the integrity of the mortgage being broken by the mortgagee, one of several mortgagors or a purchaser of a portion of the equity of redemption was entitled to redeem the whole property subject to the equities in favour of other persons. In that case, one of the persons interested in the equity of redemption was not made a party. It was found, that he had been deliberately Omitted. Such omission, however, did not entail a dismissal of the suit, but the plaintiff could not he given the only relief of redeeming that part of the mortgaged properly in which the plaintiff was interested on payment of a proportionate amount but he was not entitled to the larger relief of redemption of the entire property. In that case, it had been found that the integrity of the mortgage has been broken by the mortgagee himself. It was therefore possible to direct a partial redemption at the instance of a person interested in a part of the equity of redemption. We fail to see how the principle of this decision can apply to the present case. As the suit cannot be dismissed on account of the omission to implead the mortgagor as a party and as defendant 1 purchaser cannot claim any abatement by reason of the fact that the mortgagee had given up the items in the possession of the mortgagor, the decree passed by the courts below and confirmed by the learned Judge in second appeal was the proper decree to be passed.