1. Plaintiff now appeals here to obtain a decree for sale. He holds a usufructuary mortgage in his favour executed by the defendant Babu Nandan. The First Court refused to give him a decree on the ground that the property belonged, to three brothers. Babu Nandan, Janardan and Ram Bharose and the two latter were not party defendants to the suit. Its opinion appears to be that under Order XXXIV, Rule 1, if necessary parties are not brought on the record a suit for sale must fail. The lower Appellate Court paid no heed to this argument and held that the suit for sale failed because the plaintiff acquired that remedy only in case of dispossession. The argument of the lower Appellate Court is certainly untenable. The words of the document are 'kuchh fatur waqe howe' in obtaining possession. They do not convey the idea that the mortgagee must first take possession and only on his dispossession he was entitled to sue for sale. He would be equally entitled in case there was difficulty in obtaining possession and the lower Appellate Court itself has admitted that there would be difficulty because the land was owned by several co-sharers.
2. The learned Counsel for the respondent relied upon the argument of the First Court that the suit was liable to dismissal under Order XXXIV, Rule 1. That rule however does not state what is to happen if necessary parties are not joined and it is made subject to the provisions of the Code. A previous provision of the Code is contained in Order I, Rule 9 that 'no suit shall be defeated by reason of the misjoinder or non-joinder of the parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
3. The lower Courts were, therefore, at liberty to order the sale of the defendant's interest in the land in suit.
4. The prayer for possession was not pressed here.
5. In the result I decree the plaintiff's suit for sale. A decree in the usual form shall be prepared and six months time shall be granted from to-day's date for deposit of money due in the First Court. Interest at bond rate shall run up to that date and subsequently simple interest at 6 per cent. Per annum. On non-deposit of the money the defendant's right in the mortgaged property shall be sold. The plaintiff appellant shall receive his costs throughout.