1. In this case as pointed out in the judgment of the learned Chief Justice the transferee of a mortgage has brought a suit for sale against the mortgagor and has joined therewith a claim against his transferor the original mortgagee for damages in case it should appear that any portion of the mortgage debt had been discharged by the mortgagor before the date of the transfer and so not be recoverable in the present suit from the mortgagor. The question is, is such a joinder of defendants and causes of action permissible, and this again appears to me to depend on the question whether the decision against allowing such a joinder in Muthappa Chetty v. Muthu Palani Chetty I.L.R. (1903) M 80 or the contrary decision in Meyappa Chetty v. Peirannan Chetti I.L.R. (1905) M. 50 should be followed. The decision in Muthappa Chetty v. Muthu Palani Chetty I.L.R. (1903) M. 80 proceeded upon the authority of English cases, and the chief question in my opinion is, are these cases applicable?
2. The law as to joinder of parties and causes of action embodied in Sections 26, 28 and 46 of the Civil Procedure Code is borrowed with modifications from the rules in Orders XVI and XVIII of the Civil Rules of Practice under the Judicature Act. These Rules again are largely derived from the provisions of the Common Law Procedure Act, 1852 and 1858 which modified the rigour of the rules of pleading at Common Law. The history of these changes is lucidly traced in the well known judgment of Lord Justice Bowen in. Hannay v. Smurthwaite (1893) 2 Q.B. 412 which was approved by the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494. Sections 26 and 28 of the Civil Procedure Code reproduce the language of Rules 1 and 4 of Order XVI as to joinder of plaintiffs and defendants with this modification that, whereas Rules 1 and 4 as originally framed provided for the joinder of plaintiffs or defendants in or against whom the right to any relief was alleged to exist, Section 26 expressly provides that in the case of joinder of plaintiffs, the relief must be 'in respect of the same cause of action' and Section 28 that in the case of joinder of defendants the relief must be 'in respect of the same matter.' Now it was decided by the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494 under Rule 1 as it originally stood that plaintiffs could only be joined in respect of the same cause of action and that the Rule did not permit several causes of action by several plaintiffs to be joined against the same defendant; that is to say, Rule 1 was interpreted as confined to cases in which relief was sought 'in respect of the same cause of action,' so that the introduction of the words ' in respect of the same cause of action' into Section 26 did not really make any difference, and therefore English decisions on Rule 1 are applicable to cases of joinder of plaintiffs under Section 26. It does not, however, follow that English decisions as to Rule 4 are applicable to cases of joinder of defendants under Section 28.
3. Although the decision in Muthappa Chetty v. Muthu Palani Chetty I.L.R. (1903) M. 80 may perhaps be supported on the ground that the facts in that case were not such as to admit of the joinder of defendants there attempted on any view of Section 28, yet the decision proceeds on the authority of Sadler V. Great Western Railway Company in which it was held by the House of Lords that a plaintiff could not under Rule 4 join separate causes of action against different defendants in one suit. With great respect I am of opinion that English decisions on the scope of Rule 4 are not necessarily applicable to cases in India coming under Section 28. These decisions treat Rule 1 and Rule 4 as not concerned with joinder of causes of action at all but merely with joinder of parties. The fact, however, that under the Civil Procedure Code joinder of plaintiffs is only permitted when the relief is claimed in respect of the same cause of action, while in the case of defendants joinder is permitted when the relief is claimed in respect of the same matter goes, in my opinion, to show that it was not intended to restrict the joinder of defendants to cases in which relief is sought in respect of the same cause of action, and if this had been the intention, the words 'in respect of the same cause of action' would have been used in Section 28 as well as in Section 26. The use of the less definite words 'in respect of the same matter ' in Section 28 would seem to show that it was intended to allow joinder of defendants not only when relief was sought in respect of the same cause of action, but also when relief is sought in respect, of separate causes of action against the different defendants so long as they all arise in respect of the same matter.' The inconveniences of allowing defendants only to be joined in respect of the same cause of action in the strict sense and the consequent multiplicity of suits and failure of justice that must often result are forcibly pointed out by Lindley M.R. in Fankenburg v. Great Horseless Carriage Co. (1900) I.Q.B. 504 where the Court of Appeal put a liberal construction upon the term 'cause of action' for the purpose of avoiding such in conveniences. Any other decision would, it is there pointed out, have revolutionised the practice of the Chancery Division. This, in my opinion, explains why the words 'in respect of the same cause of action' in Section 26 are replaced by 'in respect of the same matter' in Section 28, the intention being that claims to relief might be joined in one suit against several defendants whether they constituted separate causes of action or not so long as they were 'in respect of the same matter' That the words 'in respect of the same matter' in Section 28 are wider than the words 'in respect of the same cause of action' has been pointed out by Sir Bhashyam Atyangar J. in Dampanaboyina Gangi v. Addala Ramaswami I.L.R. (1902) M. 736. If Section 28 is wider than Section 26, it is also wider than Order XVI, Rule 1 as it originally stood, and is also wider than Rule 4 which has been held to be as restricted as Rule 1 with regard to joinder of causes of action. The conclusion follows that English decisions under Rule 4 are not applicable to Section 28, Civil Procedure Code, as the scope of the section is wider than that of the rule. The decision in Muthappa Chetty v. Muthu Palani Chetty I.L.R. (1893) M. 80 proceeds on the view that the English decisions as to the scope of Rule 4 must govern cases under Section 28, Civil Procedure Code. If this is not so and the English decisions on Rule 4 can be treated as inapplicable, the present case presents no difficulty and there is a uniform course of decisions in favour of allowing joinders such as that in the present case so long as the relief is sought 'in respect of the same matter' - Buddree Doss v. Hoare Miller and Co. I.L.R. (1881) C. 170; Rajdhur Chowdhry v. Kalikrishna Bhutta. Charjya I.L.R. (1882) C. 963; Madan Mohun Lal v. Holloway I.L.R. (1886) C. 555 which two cases closely resemble the present; Meyappa Chetti v. Pertannan I.L.R. (1905) M. 50 and Mowji Monji v. Kuverji Nanaji I.L.R. (1907) B. 516.
4. For these reasons, I agree with the conclusion arrived at by Benson J, and dismiss the second appeal with costs. The 2nd defendant must pay the 1st defendant's separate costs of the appeal in this Court.