SHAGUN CHAND Vs. DATA RAM

JUDGEMENT

(1.) This second appeal arises out of an application for the framing of a final decree in a mortgage suit. One Shyam Sunder Lal executed a mortgage-deed in favour of Lala Data Ram and Mt. Bundi, applicants for the final decree. They obtained a decree against him. Subsequent to the institution of the suit, Shyam Sunder Lal purported to partition the mortgage property along with other property between himself and the present appellants. Data Ram and Mt. Bundi consequently only asked for and obtained a preliminary decree against Sunder Lal. In their application, however, for a final decree they joined the appellants on the ground that they had obtained possession under the partition deed. No application was made to the Court under Order 1, Rule 10(2) of the Civil P.C. for joining them as a party and no order was passed by the Court under Order 1, Rule 10(2) declaring that they were necessary parties and allowing their names to be joined as defendants.

(2.) The final decree was framed not only against Shyam Sunder Lal but also against the appellants. Both the lower Courts held that inasmuch as Shyam Sunder Lal, in the year 1914, long before the present litigation, had applied for partition of his share in some villages, he had indicated that he had become separate from the other members of the joint family. They held that this was conclusive evidence of separation notwithstanding that it was shown that he had withdrawn the suit for partition.

(3.) In this appeal two points arise for decision. The first point is whether the final decree was rightly given against the appellants. I am of the opinion that the proceedings for a final decree are merely a continuation of the suit as instituted for the purpose of a preliminary decree and that the provisions of O.1, Rule 10(2) of the Civil P.C. governing the joinder of an additional party daring the pendency of a suit will apply to this case. As the sole question in the suit was whether the plaintiff was entitled to a decree against Shyam Sunder Lal in respect of his interest in the mortgaged property, neither the plaintiff nor the Court (suo initio) could add the appellants at any time as defendants; still less could they add them as defendants after a preliminary decree excluding them had been passed. The Court, therefore, in my opinion had no jurisdiction to add these appellants as parties. Nor indeed did it do so. The inclusion of their names as judgment-debtors under the final decree was not due to any order of the Court for their names to be added as defendants but merely due to the fact that the plaintiff had included their names in his application for final decree. It cannot be said that the mere fact of the Court having included their names in the decree amounted to an order under O.1, Rule 10(2). I would, therefore, hold that no decree should have been granted against the appellants.