SHAHASAHEB MARD SABDARALLI Vs. SADASHIV SUPDU

JUDGEMENT

(1.) In this suit the mortgagee, who is respondent in this appeal, sued to recover the mortgage debt by sale of properties mortgaged in 1896 by the deceased Sabdaraili. The suit was brought within the extended period of limitation allowed by Section 36 of the Indian Limitation Act, 1908, and the original mortgagor having died before the suit his wife and daughters--the appellants--were made defendants.

(2.) Objection was taken in the first Court that the suit was bad for non-joinder of other heirs of Sabdaralli--his brother and sister s children. But the mortgagee did not join them in spite of the objection as the period of limitation as against them had expired.

(3.) The Subordinate Judge held that the non-joinder of these heirs was not fatal to the suit and decreed the suit as against the interest of the wife and daughters. The lower appellate Court confirmed this decree and the wife and daughters in this appeal contend that the provisions of Order XXXIV, Rule 1, are imperative and that the non-joinder of the heirs admittedly interested in the equity of redemption necessitated the dismissal of the suit.