ABDUL RAHMAN MIA Vs. SRIMATI SALIMANNESSA BIBI

JUDGEMENT

(1.) This is an appeal against a decision of the Subordinate Judge of Tippera, modifying a decision of the Munsif, Seventh Court, Comilla. The suit was one for enforcement of a mortgage-bond executed in favour of two persons, Aftabuddin and Abdul Waned, Aftahuddm is dead; he left two heirs. One of these is the first plaintiff. The other was Aftabuddin's sister Majidnnnessa. The second plaintiff is Abdul Waited. The learned Munsif was of opinion that the failure to join Majidunnessa's heirs as parties to the suit was in violation of Order XXXIV, Ruler 1, of the C.P.C. and for that reason the suit must fail; he accordingly dismissed the tilt. The learned Subordinate Judge, on the other hand, relying upon certain decisions of this Court, which lie has cited in his judgment, has held that "the suit is maintainable for plaintiff No l's half the share of Altafuddin's half share." He adds "the plaintiff will recover three-fourths of the money due on the mortgage deducting Rs. 125 paid. Defendants are allowed three months time to pay, in.default the mortgaged property will be sold and proceeds paid in satisfaction of the decree. 11 y "plaintiff" I suppose that the learned Subordinate Judge has intended "plaintiff Nos. 1 and 2." In making this order it is evident that the Subordinate Judge ignored the possible mortgage lien of the heirs of Majidunessa. It seems to me that in the circumstances of the present case the decisions which relate to suits against joint mortgagors have no direct bearing. The cases of Shivubai Rajaram Shete V/s. Shiddheswar Martend Hegde 61 Ind. Cas. 590 : 45 B. 1009 : 23 Bom. L.R. 405. and Sabduralli V/s. Sadashiv Supde 51 Ind. Cas. 223 : 43 B. 575 : 21 Bom. L.R. 369. which have been cited by the learned Vakil for the respondents are similarly of little assistance in the present case The learned Vakil has suggested that Section 99 of the C.P.C. may be invoked. But when, as I have just now pointed out, the merits of the case have been affected by the non-joinder, this provision of the law can have no application.

(2.) The learned Vakil for the respondents has further sought to support the decision of the learned Subordinate Judge on the, ground that after all, any suit by Majidunnessa's heirs is barred by limitation. I am not prepared to say in the absence of Majidunnessa's heirs whether their claim is barred by limitation or not. We have been asked to remand the case to the lower Appellate Court in order that this lady's heirs may be impleaded. But having regard to the fact that the respondent willfully refused to make them parties at an earlier stage of the litigation, we do not think that is a case in which the course suggested should be adopted.

(3.) For these reasons, we think, that the, decree of the learned Subordinate Judge should be set aside. We accordingly set aside the judgment and decree of the learned Subordinate Judge and restore the judgment and decree of the learned Munsif with costs to the appellants in all the Courts. Cuming, J.