PULIN KRISHNA RAY Vs. NANDA LAL RAY

JUDGEMENT

(1.) In this case it appears that there were two mortgagees each of whom appears to have lent a sum of Rs. 12,500 on the security and the plaintiff Nanda Lal Ray brought the suit for enforcement of his mortgage. He impleaded as defendant his co mortgagee Pulin Krishna Ray on the allegation that he had asked him to join as a plaintiff but that he refused to do so. The co mortgagee in his written statement appears to have admitted that he was asked to join as plaintiff but that for various reasons he refused to do so. The suit was not contested before the learned Judge and the mortgage was proved. Thereupon the learned Judge considered the question as to costs against the absent mortgagor. He considered the English case of Davenport V/s. James (1817) 7 Hare 249 : 12 Jur. 827 : 68 E.R. 102 : 82 R.R. 98 and came to the conclusion that that case was an unsatisfactory authority as it did not give the reasons for its decision and would not apply to the present case because he thought that the co mortgagee should have reasonably joined as a plaintiff and should not have put the mortgagor to unnecessary expense by his being joined as a defendant. We have had the authorities examined before us and it does appear to me that the appellant by his learned Counsel has made good his point, that in a case of this sort he is not bound to join as plaintiff. He need not sue until he wants to sue. The law is that where the co-mortgagee has not joined as plaintiff but has been joined as a defendant his costs should be provided for out of the security just as the plaintiff's costs. The learned Judge was wrong in not following the case of Davenport v. James(1817) 7 Hare 249 : 12 Jur. 827 : 68 E.R. 102 : 82 R.R. 98 on principle. That case has been referred to and approved by authorities in various text-books on mortgage, namely, Fisher on Mortgage, Coote on Mortgage, Volume II, and Ghose on Mortgage, 4 Edition, let Volume, and we find that it has more than once been followed in Indian Courts. In the circumstances, I am of opinion that on a question of principle it cannot be said that a failure on the part of the co-mortgagee defendant to join as plaintiff should deprive him of the costs which he has in fact incurred. That being so the appeal must be allowed and the appellant will be given costs in the Court below. As regards the costs in this appeal, although the mortgagor is not responsible for the appellant having to come to this Court, I do not see how the appellant can be deprived of his costs against the mortgagor. His costs in this appeal will also be added to his security.

(2.) There will be no order for costs of this appeal in favour of the plaintiff. George Claus Rankin, C.J.

(3.) I agree.