Paramada Charan Banerji and Tudball, JJ.
1. This was a suit for sale under a mortgage, dated the 21st of April, 1892, executed in favour of the plaintiff, Alam Singh, by one Chatar Singh. The first set of defendants are the legal representatives of the mortgagor, who is now dead. The other defendants are subsequent transferees of the mortgaged property. It appears that on the 28th of June, 1895, a usufructuary mortgage of 1 biswa, 10 biswansis, out of the mortgaged property, the extent of which is 4 biswas, was made in favour of the plaintiff, Alam Singh, and Narain Singh, his brother. Narain Singh was not made a party to the suit. On the ground that Narain Singh was a necessary party to the suit under Order XXXIV, Rule 1, of the Code of Civil Procedure and had not been made a party, the court of first instance dismissed the suit. The decree of that court has been affirmed by the lower appellate court. The plaintiff has preferred this appeal, and it is contended on his behalf that the claim ought not to have been totally dismissed.
2. There can be no doubt that Narain Singh, as subsequent mortgagee of a portion of the mortgaged property, had an interest the equity of redemption and was, therefore, a necessary party within the meaning of Order XXXIV, Rule 1, of the Code of Civil Procedure. The effect, however, of the omission of Narain Singh from the suit was, in our opinion, not the total dismissal of the suit, but only of so much of it as related to the 1 biswa, 10 biswansis, of which Narain Singh is a subsequent mortgagee. There still remains the remaining 2 biswas, 10 biswansis and as to this the omission of Narain Singh did not affect the claim. The plain- tiff, if he is entitled to a decree, is entitled to realize amount of his mortgage from the remainder of the mortgaged property. The courts below ought, therefore, to have tried the case as between the persons who were parties to the suit in respect of the portion of the mortgaged property which was unaffected by the subsequent mortgage in favour of Narain Singh and the plaintiff.
3. We accordingly allow the appeal, set aside the decrees of the courts below and remand the case to the court of first instance with directions to readmit it under its original number in the register and to try it on the merits. If the court finds that the plaintiff is entitled to a decree, the decree should be confined to the 2 1/2 biswas which are not comprised in the mortgage of the 28th of June, 1895. Costs here and hitherto will abide the event.