1. This is an appeal by the plaintiff whose suit has been dismissed by both the Courts below. The allegations on which she came to Court were that one Munshi Raghubar Dayal was the owner in possession of a certain house set forth at the foot of the plaint which house after death of Raghubar Dayal was inherited by his nephew Maheshri Dayal and after Maheshri Dayal's death Kishan Dayal became the owner of the same. Munshi Raghubar Dayal was a share-holder of the Peoples Industrial Bank and as he had not paid the entire amount due from him on account of those shares, after the death of Munshi Raghubar Dayal, Decree No. 8 of 1914 was passed by the Court of the District Judge of Allahabad against Kishan Dayal and Maheshri Dayal, heirs of Munshi Raghubar Dayal in respect of the amount due on account of the unpaid share money treating the said Kishan Dayal and Maheshri Dayal as contributories. In execution of the aforesaid decree an order for attachment of the said house was passed on 14th September 1927 and the attachment itself was made on 22nd September 1927. Subsequently the house was sold and purchased on 12th July 1928 by the liquidator who sold it to the plaintiff on 22nd May 1929.
2. The house, however, had been mortgaged by Maheshri Dayal on 20th December 1915 in favour of the defendants who brought a suit on the basis of the mortgage on 19th December 1927 but did not implead the liquidator who from the resume of facts given above had obtained an order of attachment on 14th September 1927 and had actually attached the house on 22nd September 1927. The defendants obtained a preliminary decree on 28th February 1928 and the said decree was made final on 15th September 1928. The case for the plaintiff was that the plaintiff's predecessor, the liquidator, was a necessary party to the mortgage suit, and as he was not impleaded the plaintiff, the successor-in-interest of the liquidator, is entitled to ignore the mortgage. I use the word 'ignore' advisedly, because the only relief that is claimed in the plaint is a declaration in favour of the plaintiff that the house is not saleable in execution of the mortgage-decree obtained by the defendants. There is no statement anywhere in the plaint that the plaintiff is prepared to redeem the mortgage and throughout the course of the litigation in the Courts below and even before me no such offer has been made. The lower appellate Court has dismissed the plaintiff's suit on the ground that the defendants, when they brought their mortgage-suit, had no knowledge of the attachment of the house in execution of the contributory decree. He was further of the opinion that the sale in favour of the plaintiff took place during the pendency of the mortgage suit and 'it may be called to be void for it was held during the pendency of a contentious suit.' The learned Judge further commented on the fact that the defendants were running about,
forgetting their rights proclaimed as regards the house that was being put to auction in the contributory decree. No doubt defendants' application for impleading the Official Liquidator or the plaintiff was disallowed by the District Judge of Allahabad, but he held that the defendant who had applied before him was entitled to follow the property in the hands of any person who held it.
3. This observation of the learned District Judge in the earlier proceedings that the defendants, mortgagees, would be entitled to follow the property was mentioned in the judgment of the Court below as a circumstance that went against the plaintiff. In second appeal before me the plaintiff bases her contention principally on Section 91, T.P. Act, before its amendment and urges that under Clause (f) of the aforesaid provision an attaching creditor was a necessary party to the suit filed by the defendants on their mortgage of 1915. Reliance has been placed on some cases (Which held that an attaching creditor was necessary party but it must be conceded that even prior to the amendment of the Transfer of Property Act by Act 20 of 1929, there was a serious conflict of decisions as to whether an attaching creditor was a necessary party to a mortgage suit or not. The amended Section 91 does not mention an attaching creditor as one of the persons entitled to redeem a mortgage and under the present law he can in no case be said to be a necessary party to a mortgage suit. As regards the conflict I need mention only a few cases, although all of them are collected by Chitaley in his Code of Civil Procedure, Vol. 3, at p. 2374. In Subramania Chettiar v. Sinnammal 1930 53 Mad 881, a Full Bench of the Madras High Court held that an attaching creditor was not a necessary party. In Kora Mal v. Raghubir Lonia 1929 All 861, it was held by two learned Judges of this Court that an attaching creditor was not a necessary party. In Fatima Begum v. Bansdhar 1932 ALJ 289, it was held that an attaching creditor was not a necessary party to a mortgage suit. I do not think that I am called upon to give a decision of my own on this vexed question or necessarily to refer the point to a larger Bench because even on the assumption that an attaching creditor is a necessary party in a mortgage suit, the plaintiff of the present litigation has misconceived her remedy. Dr. Asthana on behalf of the appellant has drawn my attention to the case in Janaki Prasad v. Kishan Dat (1894) 16 All 478, where it was held that no mortgagee could sell the mortgaged property except under a decree for sale obtained under Act 4 of 1882, and if a mortgagee has obtained a mortgage decree without impleading a subsequent mortgagee who had a right of redemption, a valid decree under Act 4 of 1882 has not been obtained and the mortgagee is not entitled to bring the mortgaged property to sale, and the contention put forward before me is that on the basis of this ruling the plaintiff is entitled to ask the Court to give a declaration that the defendants are not entitled to put the house to sale in execution of their mortgage decree inasmuch as the litigation which culminated in the decree suffered with the infirmity that the attaching creditor was not impleaded as a defendant. The plank, therefore, of the appellant's argument is to be found in Janaki Prasad v. Kishan Dat (1894) 16 All 478 referred to above. This case was considered by a Full Bench of this Court in Hukum Singh v. Lallanji 1921 43 All 204, and definitely dissented from. It was pointed out that the learned Judges who decided the case in Janaki Prasad v. Kishan Dat (1894) 16 All 478 seem to have overlooked totally a certain aspect of the law of mortgages and a passage from Jones in his well-known work on the Law of Mortgages was quoted. The passage is:
When a party in interest other than the owner of the equity of redemption is not made a party to the bill, the foreclosure is not generally for this wholly void. It is effectual as against those persons interested in the equity who are made parties. The sale vests the estate to the purchaser subject to redemption by the person interested in it who was not made a party to the proceedings. His only remedy, however, is to redeem. He cannot maintain ejectment against the purchaser. He cannot have the sale set aside by intervening by petition in the foreclosure suit. His only right is the right of redemption. To put it in other words 'omission to join keeps intact the rights of persons not joined.
4. Their Lordships said that there was not warrant for holding that the mere omission would result in the total extinction of the rights of the mortgagee. I may further point out that the reason of the decision in Janaki Prasad v. Kishan Dat (1894) 16 All 478 seems to lie in the mandatory provisions of Section 85, - T.P. Act, 4 of 1882. Under that provision all persons having an interest in the property comprised in a mortgage must be joined as parties and this injunction was subject only to Section 437, Civil P.C. Under Order 34, Rule 1, the injunction is subject to the provision's of the entire Code and not only to Order 31, Rule 1 (Section 437 of the old Code). It is subject, for instance, to Order 1. Rule 9, or Order 30 (suits by or against firms). Be that as it may, the position is that it is not open to the plaintiff to say that the defendants (mortgagees) have lost all rights under the mortgage simply because they did not implead the plaintiff or the liquidator in their mortgage suit. The result of such a non-joinder cannot be fatal to the rights of the mortgagee, but the obvious result would be that the rights of persons who have not been joined would not in any way be affected either by the decree in the mortgage suit or even perhaps by the sale on the basis of the said decree. Let it be understood that I have not in any way decided that the plaintiff was a necessary party to the mortgage suit, and my observations that the plaintiff's rights are not in any way affected by the mortgage decree are on the assumption that she was a necessary party. For the reasons given above, there is no force in this appeal and I dismiss it with costs.