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Baldeo Prasad and ors. Vs. Bhola Nath - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Reported inAIR1929All941; 121Ind.Cas.106
AppellantBaldeo Prasad and ors.
RespondentBhola Nath
Cases ReferredParshadi Lal v. Laiq Singh A.I.R.
Excerpt:
- u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - act, in order 1, rule 10(5), and it is clearly a section which should be taken into account in determining the question before the court. by doing so the provisions of order 34, rule 1 are satisfied......owners of the remaining four-ninths of the mortgagee rights should be added as parties to the suit. limitation for these persons to sue as plaintiffs had elapsed before that date. the application was refused.3. order 34, rule 1, lays down:subject to the provisions of this code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.4. it has been ruled in a number of cases that rule 9, order 1 is subordinate to rule 1, order 34, and that a mortgage is one and indivisible and if all the parties entitled to a share in the mortgage money due are not upon the record the suit to recover the mortgage money must be dismissed in its entirety. the point which has been argued before this.....
Judgment:

1. This is a second appeal against concurring decrees of the two lower Courts dismissing the suit of the plaintiffs-appellants for recovery of the mortgage money on two hypothecation bonds dated 27th March 1911 and 12th August 1911 Defendants represent the mortgagors. On the other the plaintiffs, although they are the descendants of the original mortgagees, only own five-ninths of the mortgagee rights. By a partition deed dated 10th September 1917 two mortgagees divided their mortgagee rights with their four brothers, who acquired by this partition four ninths of the mortgagee rights. The owners of these four-ninths were not parties to the suit as brought on 7th August 1923.

2. The mortgage money in the first bond was due for payment on 27th March 1912, and the mortgage money in the second bond was due on 18th May 1912. On 3rd July 1924 the plaintiffs applied asking that the present owners of the remaining four-ninths of the mortgagee rights should be added as parties to the suit. Limitation for these persons to sue as plaintiffs had elapsed before that date. The application was refused.

3. Order 34, Rule 1, lays down:

Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

4. It has been ruled in a number of cases that Rule 9, Order 1 is subordinate to Rule 1, Order 34, and that a mortgage is one and indivisible and if all the parties entitled to a share in the mortgage money due are not upon the record the suit to recover the mortgage money must be dismissed in its entirety. The point which has been argued before this Court in second appeal is that the application of 3rd July 1924 should be allowed and the owners of the remaining four-ninths should be added as defendants and the suit of the plaintiffs should be decreed for five-ninths only of the sum claimed in the plaint, which was the whole of the mortgage money with interest. This contention was based on Nathi Lal v. Lala [1912] 9 A.L.J. 410, (pp 415 & 418) where it was pointed out that if persons were added as plaintiffs after the period of limitation for their suit had expired, Section 22 Lim. Act, would bar their suit, but if they were added as defendants no such result would follow and there would be no ground for the application of limitation in their case, if no relief was asked for against them or on their behalf.

5. Section 22, Lim. Act, provides:

Where after the institution of a suit, a new plaintiff, or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

6. Reference is made to Section 22, Lim. Act, in Order 1, Rule 10(5), and it is clearly a section which should be taken into account in determining the question before the Court.

7. The contention for the defendants-respondents is that where a necessary party has been brought on the record after the period of limitation has expired the whole suit must be dismissed. In support of this the defence refer to the following rulings:

8.Girwar Narain v. Mt. Nakbulunissa 1916] 1 Pat. L.J. 468. In this case ten descendants of the mortgagees had been omitted from the suit and they applied to be made plaintiffs, and the plaintiffs also applied for these persons to be made plaintiffs, both applications being made after the period of limitation had expired.

9. The question as to whether these ten persons might not be joined as defendants was not considered at all in this ruling. In fact the ruling wrongly quotes Order 34, Rule 1 on p. 471 as follows:

Order 34, Rule 1, which makes it imperative that all persons interested in the mortgage security shall be joined as plaintiffs.

10. The rule merely says that the persons interested are to be joined as parties. There is no reference to Section 22, Lim. Act, in this ruling and the effect of it was not considered. For these reasons we do not think that this ruling is a sound authority on the point.

11. Mnshtaq Ali Khan v. Behari Lal [1914] 25 I.C. 508. In this brief ruling the question was not considered whether the remaining owners of the mortgagee rights could not be added as defendants, after the period of limitation for a suit brought by them as plaintiffs had expired. Nor is there any reference to the provisions of Section 22, Lim. Act. As the question now before us has not been discussed at all in that ruling it is not an authority on the point It merely laid down that all owners of the mortgagee rights were necessary parties, and the debt could not be recovered except by all the mortgagees bringing a suit within the time prescribed by law.

12. Abdul Rahman v. Salimannessa Bibi A.I.R. 1926, Cal. 416. This ruling merely lays down that all the owners of the mortgagee rights are necessary parties. It was alleged that the claim of the remaining mortgagees was barred by limitation but the Court did not refuse to consider an application to add them as parties on that ground, but refused because the plaintiffs had wilfully refused to make them parties at an earlier stage'

13. In the rulings cited by the defence there is no rule laid down in regard to the contention before us.

14. On the other hand the rule laid down in Nathi Lal v. Lala [1912] 9 A.L.J. 410 is in favour of the appellant. That principle is that in compliance with Order 34, Rule 1 and Order 1, Rules 9 and 10(2), the Court should add necessary parties, and after they have been added apply Section 22, Lim. Act, to see the result on the relief asked for on against the parties added It is not correct for the Court to refuse to add a person as a party merely on the ground that if he were a plaintiff his suit would be barred; that is, if the application is to add him as a defendant. Applying this method, if the owners of four-ninths of the mortgagee rights are added as defendants pro forma in the present case the plaintiffs are not asking for any relief against them, nor can the defendants added get any relief, and accordingly Section 22 does not affect them if they are merely made pro forma defendants. By doing so the provisions of Order 34, Rule 1 are satisfied.

15. The plaintiffs will only be able to recover the five-ninths of the amount which they have claimed in the plaint, as they were not in any case entitled to sue on behalf of the owners of the remaining four ninths.

16. Objection wag taken that such a rule would result in more suits than one on the same mortgage deed. It does not have that result, because if the application was made before the expiry of limitation, the remaining owners would be added as plaintiff; and if the application is made after limitation, the remaining owners cannot bring a suit later as that suit would be barred by limitation.

17. Reference has also been made by the counsel for appellant to Parshadi Lal v. Laiq Singh A.I.R. 1924 All. 107., where in a suit for sale of the mortgaged property it was held that the omission to implead a subsequent mortgagee was not fatal to the suit and that a decree might properly be passed subject to the subsequent mortgage. At p. 702 (of 21 A.L.J.) it is stated:

The object of Order 34, Rule 1, is to prevent multiplicity of suits and to secure that no injury is done to the rights of any party through his not being impleaded. The provision is expressly made subject to other provisions of the Code which include Order 1, Rule 9, and it has been laid down many times that where it is possible for the Court to do justice between the parties before it, it should do so and should not make Order 3(sic), Rule 1, a ground for dismissing the entire suit.

18. Applying this principle to the present class of cases it appears that it is possible to do justice between the plaintiffs and the defendants by granting the plaintiffs a decree for the five-ninths part of the mortgage money and interest due to the plaintiffs. To this extent the appeal is allowed and the suit remanded for disposal on the remaining issues.


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