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Ram Charan Lal and ors. Vs. Muhammad Rashid-ud-dIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.674
AppellantRam Charan Lal and ors.
RespondentMuhammad Rashid-ud-dIn and ors.
Excerpt:
civil procedure code (act v of 1908), order 1, rule 9, order xxxiv, rule 1 - mortgage suit--non-joinder of parties--prior mortgage merged into decree, effect of. - - in second appeal, it is contended (1) that the mere fact that the prior mortgage is merged into a decree cannot prevent a subsequent mortgagee from enforcing his security, and (2) that a puisne mortgagee is not disentitled to a decree for sale if he has failed to implead a mortgagee subsequent to himself. the learned counsel for the respondents contends that as lachhmi narain and others, mortgagees, subsequent to the plaintiffs, were not made parties, the suit under the provisions of order xxxiv, rule 1, must fail......for sale upon his mortgage, dated the 20th of august 1895. the plaintiffs did not make the prior mortgagee, mohi-ud-din haider, a defendant to the suit, nor did they make lachhmi narain and others, sons of gopal, mortgagees subsequent to themselves, defendants to the suit. the court of first instance gave a decree for 'sale of the property which was not covered by the prior or subsequent mortgage. in appeal to the lower appellate court two points were pressed, (1) that the plaintiffs were entitled to a decree for sale of the property covered by the prior mortgage; (2) that they were entitled to a decree for sale without impleading the subsequent mortgagee. in second appeal, it is contended (1) that the mere fact that the prior mortgage is merged into a decree cannot prevent a.....
Judgment:

1. This was a suit by the representatives-in-interest of a subsequent mortgagee for sale upon his mortgage, dated the 20th of August 1895. The plaintiffs did not make the prior mortgagee, Mohi-ud-din Haider, a defendant to the suit, nor did they make Lachhmi Narain and others, sons of Gopal, mortgagees subsequent to themselves, defendants to the suit. The Court of first instance gave a decree for 'sale of the property which was not covered by the prior or subsequent mortgage. In appeal to the lower Appellate Court two points were pressed, (1) that the plaintiffs were entitled to a decree for sale of the property covered by the prior mortgage; (2) that they were entitled to a decree for sale without impleading the subsequent mortgagee. In second appeal, it is contended (1) that the mere fact that the prior mortgage is merged into a decree cannot prevent a subsequent mortgagee from enforcing his security, and (2) that a puisne mortgagee is not disentitled to a decree for sale if he has failed to implead a mortgagee subsequent to himself. The learned Counsel for the respondents contends that as Lachhmi Narain and others, mortgagees, subsequent to the plaintiffs, were not made parties, the suit under the provisions of Order XXXIV, Rule 1, must fail. We are not prepared to accept this contention inasmuch as Order 1, Rule 9, expressly provides that non-joinder of necessary parties is not fatal to a suit-, and the provisions of Order XXXIV, Rule 1, are subject to the provisions of the Code which includes Order I, Rule 9. On principle, it is always desirable that all the necessary parties in a mortgage suit should be before the Court, so that all the rights and interests in the property may be settled once for al), and it is, therefore, the duty of the Court to implead necessary parties. As in the case before us, the Court has not done so the decrees of both the lower Courts are, in our opinion, defective. We, therefore, set aside the decrees of both the Courts below and send down the case to the first Court through the lower Appellate Court with a direction to make Lachhmi Narain and others parties to the suit and decide the case according to law. On the first point taken before us in the appeal, we are of opinion that the mere fact that a prior mortgage is merged into a decree, cannot prevent a subsequent incumbrancer from suing to enforce his security inasmuch as the rights of the prior mortgagees are always protested in the decree which they obtain on their mortgage. Costs will abide the result.


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