1. This appeal arises out of a suit upon a mortgage. The plaintiff was the son of the mortgagee. Defendants Nos. 1 and 2 were the nephew and grand-nephew of the mortgagor, defendants Nos. 4 and 5 were representatives of the late Maharajah of Ajudhia to whom part of the mortgaged property was transferred by the mortgagor after the mortgage. Defendants Nos. 6, 7, 8 and 10 were impleaded as trustees of part of the property under a deed of endowment executed by the Maharajah.
2. Defendant No. 1 pleaded that there was no legal necessity for the mortgage, the same plea among many other was put forward by defendants Nos. 6 and 10.
3. The Subordinate Judge decreed the claim holding that legal necessity for the mortgage had been proved.
4. Defendants-Nos. 5 and 10 appealed separately to the District Judge who allowed both appeals holding that legal necessity for the mortgage had not been established. The learned Judge dismisssed the suit with costs so far as it related to the property in possession of the appellants before him. Defendant No. 1, who was a respondent in the Court of the District Judge, contended that the suit should be dismissed altogether, but the District Judge expressly declined to do this.
5. Defendant No. 1 has appealed to this Court. As he did not appeal to the lower Appellate Court it is doubtful whether he has any right of appeal to this Court. We will assume, however, that he is entitled to appeal. It is urged on his behalf that inasmuch as the decree of the Court of first instance proceeded on a ground common to all the defendants i.e., that the mortgage was made for legal necessity, the District Judge, on holding that legal necessity had not been made out, was bound to reverse the decree in favour of all the defendants. Order XLI, Rule 4, provides that the Appellate Court in such a case 'may' reverse or vary the decree in favour of all the defendants. The use of the word 'may' shows in our opinion that the Appellate Court is given a discretion in the matter. It may be that a wholly unreasonable and indefensible exercise of this discretion might be a good ground for a second appeal. But we need not decide that for the District Judge has considered the question and has given his reason for refusing to reverse the decree in favour of all the defendants and We are unable to say that, his decision is unreasonable. We must, therefore, decline to interfere. The view which we have taken seems to be supported by the remarks of the Madras High Court in Seshadri v. Krishnan 8 M. 192.
6. The appeal is dismissed with costs including fees on the higher scale.