1. The Privy Council has, no doubt, held in Radha Kunwar v. Reoti Singh 35 Ind. Cas. 939 : 38 A. 488: 14 A.L.J. 1002 : 20 C.W.N. 1279 : 20 M.L.T. 211 : (1916) 2 M.W.N. 200 : 31 M.L.J. 571 : 18 Bom. L.R. 850 : 24 Cri.L.J. 303 : 5 L.W. 456 (P.C.) that in a suit by a mortgagee for sale, it was irregular to have joined as defendants parties who claimed portions of the mortgaged properties adversely to the mortgagors.
2. But whether in a suit for redemption, it would be irregular to add persons claiming title to the mortgaged property or portions thereof was not directly decided in that case. In In re Krishnaswami Pathan 8 Ind. Cas. 885 : 9 M.L.T. 173. Mr. Justice Krishnaswami Aiyar held that such a course was not obnoxious to the rules of joinder. The present case seems analogous to the case of In re Krishnaswami Pathan 8 Ind. Cas. 885 : 9 M.L.T. 173.
3. Even if In re Krishnaswami Pathan 8 Ind. Cas. 885 : 9 M.L.T. 173 was wrongly decided and it was, therefore, the duty of the Court of First Instance to have taken the necessary steps to cure the defect of misjoinder before deciding the suit the Appellate Court ought not to have reversed the decision of the Court of First, Instance on the ground of misjoinder alone, unless such misjoinder had affected 'the merits of the case or the jurisdiction of the Court' Section 99 of the Code of Civil Procedure and Vasudeva Ravi Varma v. Athikottil Eazhuvan Kannanur 26 Ind. Cas. 51. The Lower Appellate Court has assumed on general observations found in some of the decisions, that the alleged misjoinder in this case must have affected the merits. The grounds of the appeal to the Lower Appellate Court preferred by the 1st defendant and the grounds in the memorandum of objections presented by the 19th defendant in that Court do not allege that the merits or the jurisdiction of the Court were affected. It is on the facts of each case, the evidence and the course of the trial in the Court of First Instance that the question whether merits or jurisdiction have been affected should be decided. In the present case, we think that there is no question of the jurisdiction having been affected and if the merits have been affected at all, the justice of the case could be fully met by allowing the defendants Nos. 1 and 19 to let in any further evidence on the question of improvements and on the title to the lands claimed by the 19th defendant, which the Lower Appellate Court thinks would have been adduced or is necessary to be allowed to be adduced for deciding the case satisfactorily.
4. We, therefore, set aside the Lower Appellate Court's decision and direct the Appeals Nos. 320 and 360 of 1911 on the file of that Court with the connected memorandum of objections to be restored to file and direct that Court to re-hear the appeals and to pass afresh decision according to law after allowing an opportunity to the defendants Nos. 1 and 19 to adduce fresh evidence on the points above mentioned, the plaintiff being at liberty to adduce rebutting evidence so far as it is permitted by the law. Costs in all Courts will be provided for in the revised decision of the Lower Appellate Court.