KRISHNA AIYAR Vs. SUBRAHMANIA AIYAR

JUDGEMENT

(1.) This appeal is against the order of the Subordinate Judge of Mayavaram refusing to add the two respondents as parties after the preliminary decree in a mortgage suit brought by the plaintiff had been passed and before the final decree. A portion of the mortgaged property had been attached by the 2nd respondent and was brought to sale by him on the 18 of July 1921. A portion of the properties was purchased on that date, by the 1 respondent, but the sale was not confirmed until December 1921. In the meanwhile, in November 1921 the plaintiff brought his suit. Some other properties which had been sold in July had been purchased by a third party but that sale was set aside because the balance of purchase-money was not paid and they were again brought to sale in March 1922, when they were purchased by the 2nd respondent. As those persons are interested in the mortgaged property, the plaintiff sought to add them as party defendants to his suit before he obtained the final decree. So far as the 2nd respondent is concerned, it is perfectly clear that he purchased the property during the pendency of the plaintiff's suit and, consequently the provisions of Order 22, Rule 10 are applicable in his case. Under that Rule he can be added as a party at any time during the pendency of the suit and inasmuch as he has purchased the mortgagor's interest in a portion of the property, it is certainly desirable that he should be added, for having purchased pendente lite he has become subject to all the liabilities of the mortgagor and consequently can raise no defence to this suit which the mortgagor could not raises The case is somewhat different as regards the 1 respondent. He undoubtedly purchased the property before the suit was filed; but inasmuch as his sale was not confirmed until after the filing of the suit the plaintiff could not make him a party, because he would have been meet with the objection that this respondent had not at that time any interest in the land; but inasmuch as the creation of the interest dated back to July, and the only action taken by the respondent in order to create that interest was the making of his bid in July 1921, his interest must be deemed to have been created before the suit was filed. Order 22, Rule 10 is, therefore, not applicable in his case We are then asked by the appellant to apply the provisions of Order I. Rule 10 and in the exercise of our discretion to add him as a party defendant in order to avoid the necessity of filing a fresh suit against him. The learned Subordinate Judge declined to make him a party relying on a decision of the Additional Judicial Commissioner of Nagpur Raghunath V/s. Sheolal [1917] 13 N.L.R. 69, in which it was held that it was not competent to add parties after a preliminary decree. We have, however, the authority of Keith V/s. Butcher [1884] 25 Ch. D. 750 for holding that even after a judgment had been pronounced in an action for foreclosure, a party was allowed to be added before the judgment had actually been drawn up and entered. That would appear to be a somewhat stronger case than the present one. Mo doubt in the present case as the 1 respondent had no opportunity of meeting the plaintiff's case in its earlier stages, it would not be fair to implead him as a party and make him liable to the preliminary decree already passed without giving him an opportunity of meeting it. On the other hand, it is open to the Court to add a party and allow the prior proceedings to be re-opened so far as he is concerned and we are now asked to allow this to be done rather than drive the plaintiff to another suit. There are circumstances in this case which seem to render the former course desirable. The 1 respondent has purchased this property subject to the mortgage and in the sale-proclamation the mortgage was practically admitted by the decree-holder. This statement by the decree holder is not binding on the 1st respondent, but he may be given an opportunity now of proving that the mortgage was not valid so far as his property is concerned. On this condition we direct that he also be added as a defendant.

(2.) As the appellant has succeeded entirely so far as the 2nd respondent is concerned, the 2nd respondent will pay half the plaintiff's costs in the appeal. The 1 respondent will bear his own costs.

(3.) A preliminary objection was raised that no appeal would lie against the Subordinate Judge's order, but so far as the order relates to the 2nd respondent, the appeal would lie under Order 22, Rule 10; but inasmuch as that Rule is not applicable to the 1 respondent, the appeal would not lie under Order I. Rule 10 but as the order is one and the same, we will deal with the case so far as the 1 respondent is concerned in the Revision Petition, which has also been filed. There will be no costs in the Revision Petition.