HAR CHANDRA ROY Vs. MOHAMAD HASIM

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit to enforce a mortgage security. The mortgage was granted on the 9th February 1904 by a man named Torapali Bhunya, and the mortgage money was repayable on the 17th October 1904. It is alleged that two, if not three, sums were paid in part satisfaction of the sum due on the mortgage. The plaintiff instituted the present suit on the 30th October 1916, against persons, who, they alleged, were represent- actives-in-interest of the original mortgagor. The defendants pleaded that all the heirs who were in enjoyment of the properly left by the mortgagor had not been made parties to the suit and, consequently, the suit should be dismissed for non-joinder of parties. They did not, however, state the names and addresses of the parties who, in their opinion, should have been joined. Thereupon, an issue was raised to the following effect: "Is the suit bad for defeat of parties?" The Subordinate Judge held on the evidence that a widow of the mortgagor named Alimannessa and a daughter who has died since then, had not been brought on the record, and concluded that as all tie representative of the mortgagor were not parties, the suit could not be maintained. On appeal the District Judge has taken the same view and has dismissed the suit. We are of opinion that the decree of dismissal cannot be maintained.

(2.) It is clear that the plaintiffs were, at the least, entitled to a decree for a proportionate share of the mortgage money as against the defendants who were on the record. Even if it be assumed that the persons who had been left out, could, if joined, have successfully urged the plea of limitation, that would not afford a defence in favour of the persons who had been joined as parties within the prescribed time. This view is supported by the decision in Imam Ali v. Pais Nath Ram Sahu 33 C. 643 : 10 C. W. N. 551 : 3 C. L. J. 576, in that case an objection was taken that certain parties had not been brought on the record in time and that if they were added as parties, the suit must be defend as barred by limitation as against them. It was ruled that where a purchaser of a portion of the equity of redemption is added as a party (defendant) not by the Court bat upon an application by the mortgagee after the prescribed period of limitation, although the mortgage suit is barred as against the added defendant, yet such mortgagee is entitled to succeed in respect of a proportionate part of his claim as against the remaining owners of the equity of redemotion .

(3.) The result is, that this appeal is allowed, the decree of the District Judge set saide and the case remanded to him in order that he may make a mortgage decree in favour of the plaintiffs, against the defendants, proportionate to the share of the defendants in the estate of the mortgagor. The District Judge will either himself take or direct the Subordinate Judge to take evidence for the determination of such share. On the facts found by the Subordinate Judge, which apparently have been confirmed by the District Judge, the total sum due on the mortgage will be taken to be Rs. 1,000 with interest at 12 per cent, par annum with a deduction of the sums of Rs, 125 and Rs. 200. The plaintiffs will have their costs in all Courts in proportion to their success, and such costs will be added to the mortgage amount. Fletcher, J.