1. The facts of the case are as follows. In October 1877 the 1st defendant, the father of defendants Nos. 2 and 3, and brother of 4th defendant, borrowed a sum of Rs. 200 from Subba Naick, the brother of the two plaintiffs and of 6th defendant, on the security of certain immovable property of which 5th defend ant has since become the purchaser. Subba Naick having died, the plaintiffs instituted the present suit to recover 1/3rds of the amount due on the mortgage; as the other claimant, 6th defendant would not join, they made him 6th defendant and relinquished 1/3rd of the amount due. During the progress of the suit the 6th defendant was by order of the court made 3rd plaintiff, but at the time his right to recover was barred. Two contentions were raised by defendants Nos. 1 and 5, first, that the suit was not maintainable, second, that the debt had been satisfied. Both were overruled and plaintiffs Nos. 1 and 2 obtained a decree. The 5th defendant appeals.
2. By Section 22 of the Limitation Act it is proved that, ' when 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.' No doubt it has been he d both by the High Court of Bombay and of Calcutta that a suit by several persons, as to some of whom the right to sue is barred is virtually a suit by the other plaintiff or plaintiffs alone and that if a suit so framed will not lie, as it will not in the case of a joint cause of action, there can be no other course than to dismiss the claim, but in the cases so decided, Ramsebule v. Ramlall Koondoo I. L. R 6 G 815 and Kalidas Kevaldas v. Nathu Bhayvan I. L. B 7 B 219, the suit was brought by only one of the joint contractees, the other joint contractees not being parties to the suit. But in the present case the absence of the 6th defendant is satisfactorily accounted for. He was unwilling to join his brothers in the suit. They had therefore no option but to make him a defendant and to relinquish his share of the claim. There is no authority for holding that Section 22 of the Limitation Act applies when the court of its own motion acts under Section 32, Civil Procedure Code, and orders that a defendant be made a plaintiff. All that was held in Krishna v. Mekamperuma I. L. R 10 M 44 was that, ' the procedure of the District Judge in transforming certain defendants into plaintiffs was, under the circumstances of the case, irregular.' No doubt the whole of the mortgage-debt is due to the persons claiming under the original mortgage jointly and not severally, and a person entitled to a moiety of the mortgage-debt cannot demand to be paid that moiety, Bishan Dial v. Manni Ram I. L. E 1 A 297, but that ruling does not apply to a case like the present where all the parties are before the court and the matter can be finally dealt with by the decree in the suit.
3. On the merits also the second appeal must fail. The judge has found as a fact that the debt was not discharged and it is not contended that ho has misconstrued the evidence.
4. The second appeal therefore fails and is dismissed with costs.