GOVIND CHANDRA GHOSE Vs. JAMALUDDIN MONDAL

JUDGEMENT

(1.) This is an appeal on behalf of defendant 3 and is directed against an order of remand made in a mortgage suit. It appears that a suit was brought in the Court of first instance for recovery of Rs. 999 on a mortgage executed on the 27 Aswin 1321 B. 8. said to have been executed by the defendants in favour of one Esmon Bibi, by her brother one Jamaluddin Mondal who is now plaintiff 1 in the suit. The suit was brought on the allegation that the mortgage money really belonged to him and not his sister Esmon and that Esmon was only his benamidar. The due date of mortgage was the end of Chaitra 1321 B.S. which date corresponded to 13 April 1915. The suit on the mortgage would ordinarily be barred on 14th April 1927. On 25 August 1927 after the period of limitation had expired Jamaluddin abandoned his case that Esmon was really a benamidar for him and asked for amendment of plaint alleging that he was one of the heirs of Esmon and as such he was entitled to sue on the mortgage bond with the other heirs of his sister. Some of the heirs of Esmon were already on the record as pro forma defendants, but one Abdul Mondal one of the pro forma defendants who was also one of the heirs of Esmon was brought on the record for the first time on 25th August 1927 after the statutory period of limitation had expired, He was made a co-plaintiff on that date. Amongst the numerous defences to the suit one defence taken was that the suit by the added plaintiff Abdul was obviously barred by the statute of limitation and as the suit was on a mortgage and the mortgage is one and indivisible the effect of that would be that the entire suit must fail. The other defence taken was that defendant 3 was added as a party after the period of limitation and the suit should be dismissed as against him on that ground also. The Munsif came to the conclusion that the suit was barred so far as Abdul Mondal was concerned and the effect of this was that the suit was also barred in its entirety; and he dismissed the suit with costs.

(2.) Against this decision an appeal was taken to the Court of the Additional District Judge of Rajshahi who allowed the appeal and remanded the suit to the Court of first instance for trial of the suit on merits. The learned Additional District Judge was of opinion that the suit could not be dismissed on the ground of non-joinder of one of the heirs of Esmon and referred to the provisions of Order 1, Rule 9, Civil P.C., which provides that no suit shall be dismissed by reason of non-joinder of parties. In arriving at the conclusion that Order 34, R, 1, Civil P.C., is now controlled by O 1, Rule 9 of the same Code the learned Judge points outs that the word "must" which occurred in Section 85, T.P. Act, having been dropped and Section 85, T.P. Act, having been transferred to the Civil P. C. the question as to the effect of non- joinder is governed by the provisions of the Code.

(3.) Against this order of remand the present appeal has been brought and substantially two grounds have been taken in support of this appeal by Mr. Bireswar Bagchi who appears for defendant 3, the appellant in the present appeal. He contends in the first place that the suit must be held to be one not framed in accordance with the provisions of law seeing that one of the heirs of the mortgagee was neither added as a plaintiff to the suit in proper time nor was he added as a pro forma defendant and it is argued that the effect of the absence of one of the heirs of Esmon from the category of the plaintiff is that the suit cannot be maintained. He contends that O.34, Rule 1 must not be read as being controlled by Order 1, Rule 9, but that Order 1, Rule 9 must be held as being subordinate to Order 34, Rule 1, having regard to the nature of the suit on which it was brought. It is said that the mortgage deed was one and indivisible and action on such a security must be brought at the instance of all the mortgagees or where one mortgagee is dead at the instance of the heirs of the said mortgagee or at the instance of one of the several mortgagees where the other mortgagees have refused to join in which case they must also be impleaded in the category of defendants. In support of this contention the learned advocate for the appellant has drawn our attention to a decision of the Patna High Court in the case of Girwar Narain Mahton V/s. Mt. Makbunessa (1916) 1 Pat LJ 468. That decision lays down the proposition that Rule 9, Order 1, Civil P.C. (1908), is subordinate to Rule 1, Order 34, that a mortgage is indivisible; and if all the parties entitled to share in the money due on the mortgage are not on the record the suit must be dismissed in its entirety and that when a necessary party has not been impleaded at the time of the institution of the "suit but has been brought on the record after the period of limitation has expired, the whole suit must be dismissed. This decision supports fully the contention put forward on behalf of the appellant and is also in accordance with the principles which governs such cases. Sir Rash Bihari Ghose in his classical book on the Law of Mortgage makes certain observations which are instructive with regard to the point with which we are now dealing and they may be usefully reproduced here. The learned author says at p. 611, Edn. 5 thus: Beginning with the proper plaintiffs in such actions. I will observe that the cardinal rule on the subject is that all persons who have an interest in the mortgage debt should join in an action to enforce the security, as there can be no effective decree for foreclosure, unless all the parties entitled to the mortgage money are before the Court, Where therefore several persons are entitled to the mortgage debt, all of them should be joined as plaintiffs in the action. Thus, one of several persons, though entitled to distinct share of the mortgage money, cannot sue alone, if it has been laid out by trustees in a single sum. If any of the mortgagees refuse to join as plaintiffs, they may be made defendants. For in equity it is sufficient that all parties interested in the subject of the suit should be before the Court either in the shape of plaintiffs or defendants.