NARSINGH Vs. NATHUJI

JUDGEMENT

(1.) ON 26th June 1916 Narsingh defendant 1 mortgaged certain property to the plaintiff Nathuji for Rs. 800 and a few days later he mortgaged the same property to one Kisni Bai for Rs. 900. A suit was brought on a puisne mortgage. It was filed against Narsingh and his minor son Narayan, but Narayan was given up and discharged because the plaintiff thought it unnecessary to make him a party. Nathuji was also impleaded: he stated that he was a prior mortgagee and was willing to redeem. A preliminary decree for foreclosure was passed and Nathuji paid the decretal amount. Nathuji filed a suit against Narsingh and Narayan for recovery of the amount paid but was allowed to withdraw it with permission to bring a fresh suit: he was ordered to pay the defendants' costs in that case before instituting a fresh suit.

(2.) THE suit out of which this appeal arises was filed on 23rd March 1925 and the costs in the previous case were paid five months later. In this suit the plaintiff sought to recover the amount paid in satisfaction of the puisne mortgage and the amount due on his own mortgage. It has been found that only part of each mortgage debt was incurred for legal necessity. A preliminary decree for foreclosure has been passed on the basis of the second mortgage and a preliminary decree for sale on the basis of the first mortgage. The defendant. Narayan has been allowed to redeem his half-share on payment of sums which have been calculated by excluding the portions of the mortgage debts for which there was no legal necessity.

(3.) IT is next urged that the plaintiff, a prior mortgagee, could not, by redeeming the subsequent mortgage, claim subrogation to it. Now Order 34, Rule 1, states that all persons having an interest in the mortgage security shall be joined as parties to any suit relating to the mortgage. There is an explanation which appears to be of the nature of an exception that a puisne mortgagee can sue for foreclosure or sale without making prior mortgagee a party to the suit: and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage. But this explanation appears to allow the puisne mortgagee to make the prior mortgagee a party if he chooses. This procedure is convenient if the puisne mortgagee desires to be paid, and the prior mortgagee desires to settle accounts and pay him, in order to avoid the necessity of impleading him in a subsequent suit. After the, prior mortgagee had decided that it was convenient for him to be joined in a suit and had allowed himself to be so joined he was bound to redeem the subsequent mortgage: he can, therefore, claim subrogation.