RAMJATAN BHAGAT Vs. BABU NET LAL SAH

JUDGEMENT

(1.) THIS is an application by the defendant, and arises oat of a suit against two persona for redemption of a mortgage. Daring the pendency of the suit, one of the defendant- mort. gagees died. No steps were taken within the relevant period of limitation to bring the heirs of the deceased defendant on to the record, with the result that the Court ordered that the suit had abated as against the deceased, and that it should proceed as against the remaining defendant. Later, the plaintiff applied under Order 1, Rule 10, Civil P. C. to add as a party to the litigation the widow and heir of the deceased defendant on the ground that she was a necessary party to the litigation, and that, without her being on the record, the rights of the parties could not be fully adjudicated. The defendant objected alleging that the suit had abated as against both defendants and that the application under Order 1, Rule 10 should be treated as an application to set aside the abatement. The Court took the view that there was no ground on which he abatement could be set aside, but that this was a case in which it was right and proper that the application under Order 1 Rule 10 should be allowed. It is against that order that the defendant has moved this Court.

(2.) IT is contended on his behalf that a mortgage being one and indivisible, in a suit for redemption all the mortgagees are necessary parties, and that, if they are not all on the record, or that, if one of them dies and his heirs are not brought on to the record, the suit abates as a whole. For the opposite party, it is contended that the right to redeem continues to exist until it has been extinguished by an act of the parties or by a decree of a Court, and that, as there has been no decree in the present case extinguishing the rights of the parties, or any act of the parties having that result, the mortgagors are entitled to maintain a fresh suit to enforce the mortgage, and, in those circumstances, it is in the interest of the parties that this suit should be allowed to proceed with the widow of the deceased defendant added as a party. For this proposition, reliance is placed on the decision in Joti Lal v. Sheodhayan Prashad, A. I. R. (23) 1936 pat. 420 : (15 Pat. 607). To this the defendant, petitioner replies that an order of the Court deciding that a redemption suit has abated in fact extinguished the right to redeem, and that, in this case, there being no appeal from the decision of the Court on the refusal to substitute the heir of the deceased defendant, the order has become final. There is nowhere in the order of the Court a decision that the suit has abated as a whole. All that the Court below has decided is that the suit has abated against the deceased defendant. The order cannot, therefore, be treated or construed as an order declaring that the right of redemption of the mortgagees has been extinguished. That being so, the plaintiff-mortgagors would be entitled to institute a fresh suit for redemption impleading the surviving defendants of this suit and the widow and heir of the deceased defendant, and as no question of limitation would arise in such a suit, it would merely amount to driving the parties to an additional litigation not to allow the present suit to continue with the addition of the widow of the deceased defendant. In these citcumstaucea, I would reject the contention that has been advanced on behalf of the defendant and discharge this rule with costs. Hearing fee three gold mohurs. Rule discharged.