MUTHUSWAMI CHETTIAR Vs. NARAYANASWAMI CHETTIAR

JUDGEMENT

(1.) This petition arises out of an order dismissing an application under Order 1, Rule 10 of the Civil P. C. to add the petitioner as party to a mortgage suit. The mortgagee was a deceased person whose property was claimed by an alleged adopted son. The present petitioner challenged the validity of the adoption and claimed himself to be entitled to the properties of the deceased mortgagee. There was a suit to declare that the adoption was invalid. This suit was compromised in 1934, the result being that the right of the present petitioner was recognised as to one half of the properties and the right of the adopted son to the other half. There was also a subsequent partition suit to divide the properties as a result of which the present mortgage was to be shared equally between the two. However, in 1936 the adopted son purported to assign the suit mortgage to the plaintiff as if he was solely entitled thereto. The plaintiff brought a suit on the mortgage ignoring the claim of the present petitioner to a half-share therein. The suit was filed in 1936, and while the suit was pending the present petitioner applied to be brought on record as a party to the suit entitled to a half-share in the mortgage. The learned District Munsif refused to complicate the suit by adding a person who claimed adversely to the plaintiff and dismissed the application. It seems to me that the learned District Munsif has incorrectly appreciated the legal position. Granted that it is ordinarily undesirable to implicate in a mortgage suit persons claiming adversely to either the mortgagor or the mortgagee, that is not really the position here. Present petitioner's claim is not in any way in derogation of the rights of the mortgagee or the mortgagor. He claims that he is, as to a half- share, the mortgagee himself and that the plaintiff is entitled only to the other half of the mortgage right by virtue of his assignment. Although this is a claim adverse to the plaintiff it is one which in my opinion ought to have been decided before a decree was given in the mortgage suit; for, otherwise, the result would be that the mortgagor would be liable to another suit on the same mortgage and the decree in the plaintiff's suit would not enable him to satisfy the claim under the mortgage by payment of the amount due to the plaintiff. Order 34, Rule 1, requires that all persons having an interest in the mortgage security shall be joined as parties to any suit relating to the security. If the allegations in the petition are correct the petitioner is entitled to half of the mortgage security and he is a necessary party to the suit.

(2.) It is objected that the suit has now reached the stage of a final decree. That is unfortunate. But it is not due to the fault of the petitioner, who filed his application in good time and challenged the rejection of that application in the only way open to him by filing the present revision petition. It is a pity that the revision petition has been pending so long in this Court. It seems to me, however, that the decree which the plaintiff has obtained is one which should not, either in the interests of the present petitioner or in the interests of the mortgagor, be allowed to enure solely for the benefit of the plaintiff.

(3.) In the result, therefore, I allow the petition with costs and direct that the petitioner be impleaded as a party before the trial Court which will go into the truth of the allegations in the petition, and if they are established, will amend the decree so as to make the petitioner entitled to half the amount payable under the decree.