1. The facts of the case out of which this appeal, has arisen are shortly these : Two parsons, by name Pana Mea and Ayub Ali, lent a certain sum of money on mortgage to the present respondents. A suit was brought on the mortgage-bond against the defendants. It was brought in the names of the two mortgagees Ayub Ali and Pana Mea. As a matter of fact at the time when the suit was brought Ayub Ali was dead. It would appear that the plaint had been verified by Mokram Ali, the father of Ayub Ali, apparently signing his name. The defendants, in their written statement, contended that the suit was'-not maintainable as Ayub Ali was dead at the time of the institution of the suit. Then Mokram Ali, who was the heir of Ayub Ali, put in a petition to be substituted in the place of his deceased sou Ayub Ali. This was allowed and the suit proceeded to judgment, the suit being decreed in favour of the plaintiffs. The defendants appealed to the District Court. The learned Subordinate Judge who heard the appeal held that there was no mistake in making the dead man a plaintiff in the suit; and that the dead man's father who signed the plaint, verification and vakalatnama on behalf of his son knew that he was dead and, therefore, apparently Order 1, Rule 10, would have no application. On these findings he decreed the appeal and dismissed the whole suit. The plaintiffs have appealed to this Court.
2. The contention of the learned advocate who appears for the appellants is-that the suit was not wholly bad. Pana Mea, who was one of the mortgagees, could bring the suit. It was quite possible that the suit might ultimately have been defeated on the ground that the co-mortgagee should have been made a, party. But Order 1, Rule 10, Sub-clause (2), enables the Court at any time, on such terms as it thinks fit, to add any person as plaintiff or defendant. The respondents contend that it is only where there has been a bona fide mistake in making a person plaintiff that Order 1, Rule 10, has any application and that it is only in such a case that the Court should allow the plaint to be amended and add the' name of the proper plaintiff to the suit.
3. It seems to me that this is a case of non-joinder of party. None of the authorities to which we have been referred really touch this point. The cases to which we have been referred were cases of sole defendant or sole plaintiff. Now, obviously if this were the case of a sole plaintiff who was dead at the time of the institution of the suit there would have been no suit which could be amended in any way, because a dead person cannot institute a suit. But in the present case one co-mortgagee can bring a suit on his mortgage if he adds his co-mortgagee either as a pro forma defendant or as a co-plaintiff. The suit cannot, therefore, be said to be bad ab initio. It is possible that the suit might fail ultimately if the plaintiff, when the matter was brought to his notice, refused to add the heirs of the deceased co-mortgagee either as co-plaintiff or pro forma defendant. But this was done, as a matter of fact, as soon as he realized that this person should be made a party to the suit. Order, Rule 10, Sub-clause (2) gives the Court power at any stage of the proceedings either on his own motion or on the application by any party to either strike out the name of any person improperly joined whether as plaintiff or defendant or add the name of any person as plaintiff or defendant. As far as I can read this rule it does not depend upon the fact whether the party has originally been made a party by mistake. Assuming for the sake of argument that there was no mistake in bringing the suit originally in the name of the dead man that would not prevent the Court from adding the names of the proper persons as plaintiffs or pro forma defendants. The decision of the learned Subordinate Judge is clearly wrong.
4. The appeal must, therefore, be decreed and as it has been decided on a preliminary point, the appeal will now be sent back to the learned Subordinate Judge who will hear the appeal on the other points which may arise in it.
5. Costs of this appeal will abide the final result of the appeal.
6. I agree.