RAM CHANDRA MARWARI Vs. DHADHAI SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit to enforce a mortgage security, commenced more than four years ago and not yet tried on the merits because the defendants have hitherto succeeded in their preliminary objections which are of an entirely technical and unsubstantial character. The case of the plaintiffs is that the defendants second party and third party had five-sixths and one-sixth share respectively in a mortgage security executed by the defendants first party, and they allege that they have purchased the one-sixth share which belonged to the third party defendants. They state that they have been informed that the defendants second party have received from the mortgagors a sum of money sufficient to satisfy their dues, they consequently bring this suit to enforce the security, only in respect of the money due in their share. The Subordinate Judge has dismissed the suit as bad for misjoinder of parties and causes of action. Upon appeal the District Judge has affirmed the decree of dismissal on the ground that the mortgage security is not divisible and the plaintiffs are not competent to sue in respect of their share of the mortgage money. In our opinion this decree cannot be maintained.

(2.) The plaintiffs allege that to the best of their information the mortgagors have paid to some of the mortgagees, represented by the second party defendants, a five-sixth share of the mortgage debt, and, that consequently, only one-sixth of the entire amount is due; they sue to recover this sum. They further state that if any sum is due to the second party defendants, they are prepared to increase the amount of the claim and pay Court-fees accordingly. Under these circumstances the suit must be deemed as essentially a suit for recovery of whatever is due. on the mortgage security. As pointed out by Sir George Jessel, M.R., in Luke, v. South Kensington Hotel Co. 11 Ch. D. 121 : 48 L.J. Ch. 361 : 40 L.T. 638 : 27 W.R. 514, it is open to the, second party defendants, if anything is due to them, to have themselves transferred from the category of defendant to that of plaintiffs; This course they have not adopted, and in this Court it was stated on their behalf that they were not prepared to do so because they question the title of the plaintiffs as mortgagees The suit as framed cannot possibly be defeated when all the mortgagees are parties thereto, and the plaintiffs seek to recover whatever is due on the security: Pyari Mohun Bose v. Kedarnath Roy 26 C. 409 : 3 C.W.N. 271.

(3.) The result is that this appeal is allowed, the decrees of the Courts below discharged and the case remanded to the Court of first; instance in order that the questions raised in the first part of the second issue and in the third, fourth and fifth issues may be tried, The appellants are entitled to their costs both: in this Court and the Court of appeal below from the first party and second party defendants other than the infants.