BANWARI LAL Vs. NAND RAM

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by a mortgagee who has purchased the property in execution of a mortgage-decree against certain persons who had acquired the property in execution of a simple money-decree and had not been impleaded in the mortgage suit. It appears that there was a simple money decree for profits against defendant 3 in execution of which a certain share was sold at auction and purchased by defendant 2 in 1918. Subsequently on the 3 January 1921, defendant 2 sold a part of that share to defendant 1. In 1920, the present plaintiff instituted a suit for sale on the basis of a mortgage deed in his favour, dated 19 February l908. In this suit he impleaded neither defendant 2 nor defendant 1. A decree for sale was obtained and in execution of it, the mortgaged property was put up for sale and purchased by the plaintiff decree- holder himself. When he went to the revenue Court to get mutation of names effected, he was resisted by the defendants auction-purchasers with the result that the revenue Court refused to enter his name in the revenue papers. He has now filed this suit praying that the defendants should be called upon to redeem him and in case of default their rights should be foreclosed.

(2.) The Court of first instance held that the plaintiff's suit was not maintainable against the contesting defendants. The learned District Judge has come to a contrary conclusion. He has relied mainly on the principle laid down in the case of Babu Lal V/s. Jalakia [1917] 14 A.L.J. 1146. He has pointed out that the soundness of the view expressed in that case was not accepted by another Bench in the case of Ram Narayan V/s. Somi A.I.R. 1923 All. 449. The learned vakil for the appellant has further relied on the recent case of Lachmi Narain Das V/s. Hirdey Narain which is in conformity with the second case. In our opinion, none of these cases is directly in point, for in all these cases the competition was between a prior mortgagee and a subsequent mortgagee, both of whom had obtained decrees on their mortgages without impleading the other. It is, therefore, unnecessary for us to express any view on the conflict of opinion in the cases referred to above.

(3.) In the present case, the defendants were purchasers in execution of a simple money-decree of a part of the interest of the mortgagor. They were, therefore, representatives of the mortgagor and not of the subsequent mortgagees. They were necessary parties to the suit brought by the plaintiff on his mortgage. If the plaintiff failed to implead them in his suit and the limitation had now expired, it is no longer open to the plaintiff to recover possession of the property from these defendants who are in the position of mortgagors. It is too late for the plaintiff to call upon them now to redeem his mortgage on the risk of losing all their interest in the property. The present case is governed by the Full Bench case of Hargu Lal Singh V/s. Gobind Rai [1897] 19 All. 541 where under similar circumstances it was held that a subsequent suit against the representative of the mortgagor who had not been impleaded, was not maintainable.