TINKARHI DASEE Vs. NARENDRANATH MUKHERJI

JUDGEMENT

(1.) This is a suit to enforce a mortgage, dated 25 September 1912, executed by the defendants Narendranath Mukherji and Manindranath Mukherji and the deceased son of Surabala Debi, in favour of the predecessors of the plaintiff, of their undivided l/3 share in the property mortgaged. The property consists of No. 10, Chandramohan Sur's Lane and 4-1, Iswar Mill's Lane, now known as 4/1-A and 4/1-B.

(2.) As regards the defendants Radhagobinda Goswami, Mohangobinda Goswami and Suddheswar Bhattacharya, the case has been already disposed of and the terms of the decree to be made so far as regards these parties have been consented to and recorded. The defendants Ashalata Basu and Haridas Mukherji claim, it appears a title to the second property mentioned, paramount to the mortgagor. and a position arises therefrom which is not free from difficulty. In her plaint the plaintiff states quite briefly in para. 13, that the defendant Ashalata Basu claims to be the owner of premises 4/1-B, Iswar Mill's Lane and the defendant Haridas Mukherji claims to be the owner of the premises 4/1-A, Iswar Mill's Lane, and it appears that, though they have not been read to me, these two defendants have filed written statements setting out their respective titles to the property. Through their counsel, they submit that they were not necessary parties to the suit and that no question of their title should be tried in these proceedings.

(3.) On behalf of the plaintiff, learned Counsel has expressed himself in effect as indifferent whether this question of title should or should not be tried in this suit provided that he does not have to pay these defendant's costs, but if there is any question of having to pay their costs in this suit, he submits that the Court is competent to and should try the issues that arise between the plaintiffs and the last two defendants. In support of this proposition, he has referred me to a judgment of the present Chief Justice and his learned predecessor in Bhuban Mohan V/s. Co-operative Hindusthan Bank Ltd. where the question which now arises was considered and the view which Ran-kin, J., appears to have taken is that Order 34, Rule 1, which provides that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suits relating to the mortgage, is in no way directed to the question whether any causes of action may be joined with a claim upon a mortgage, or if so in what circumstances. The learned Judge later passed on to a consideration of Order 1, Rule 3 and observed: However painful it may be to old-fashioned equity lawyers to find causes of action lying together in one suit, if such a case comes under Order 1, Rule 3, it cannot be held to be incompetent.