Krishna Iyer vs Subramania Iyer and Another

This, appeal is against the order of the Subordinate Judge of Mayavaram refusing to add the two respondents as parties after the preliminary

decree in a mortgage-suit brought by the plaintiff had been passed and before the final decree. A portion of the mortgaged property had been

attached by the second respondent and was brought to sale by him on the 18th of July 1921. A portion of the properties was purchased on that

date by the first respondent, but the sale was not confirmed until December 1921. In the meanwhile, in November 1921 the plaintiff brought this

suit. Some other properties which had been sold in July had been purchased by a third party, but that sale was set aside because the balance of

purchase-money was not paid and they were again brought to sale in March 1922 when they were purchased by the second respondent. As those

persons are interested in the mortgaged property, the plaintiff sought to add them as party defendants to his suit before he obtained the final

decree. So far as the second respondent is concerned, it is perfectly clear that he purchased the property during the pendency of the plaintiffs suit

and, consequently the provisions of Order XXII, Rule 10 are applicable in his case. Under that rule he can be added as a party at any time during

the pendency of the suit and inasmuch as he has purchased the mortgagor''s interest in a portion of the property, it is certainly desirable that he

should be added, for, having purchased pendente lite he has become subject to all the liabilities of the mortgagor and consequently can raise no

defence to this suit which the mortgagor could not raise.

The case is somewhat different as regards the first respondent. He undoubtedly purchased the property before the suit was filed: but inasmuch

as his sale was not confirmed until after the filing of the suit, the plaintiff could not make him a party, because he would have been met with the

objection that this respondent had not at that time any interest in the land; but inasmuch as the creation of interest dated back to July and the only

action taken by the respondent in order to create that interest was the making of his bid in July 1921, his interest must be deemed to have been

created before the suit was filed. Order XXII, Rule 10 is, therefore, not applicable in his case. We are then asked by the appellant to apply the

provisions of Order I, Rule 10 and in the exercise of our discretion to add him as a party defendant in order to avoid the necessity of filing a fresh

suit against him. The learned Subordinate Judge declined to make him a party relying on a decision of the Additional Judicial Commissioner of

Nagpur Raghunath v. Sheolal 39 Ind. Cas. 849 : 13 N.L.R. 69 in which it was held that it was not competent to add parties after a preliminary

decree. We have, however, the authority of Keith v. Butcher (1884) 25 Ch. D. 750 : 53 L.J. Ch, 640 : 50 L.T. 203 : 32 W. R. 378 for holding

that even after a judgment had been pronounced in an action for foreclosure, a party was allowed to be added before the judgment had actually

been drawn up and entered. That would appear to be a somewhat stronger case than the present one. No doubt in the present case as the first

respondent had no opportunity of meeting the plaintiff''s case in its earlier stages, it would not be fair to implead him as a party and make him liable

to the preliminary decree already passed without giving him an opportunity of meeting it. On the other hand, it is open to the Court to add a party

and allow the prior proceedings to be re-opened so far as he is concerned and we are now asked to allow, this to be done rather than drive the

plaintiff to another suit. There are circumstances in this case which seem to render the former course desirable. The first respondent has purchased

this properly subject to the mortgage and in the sale proclamation the mortgage was practically admitted by the decree-holder. This statement by

the decree-holder is not binding on the first respondent, but he may be given an opportunity now of proving the mortgage was not valid so far as

his property is concerned. On this condition we direct that he also be added as a defendant.

As the appellant has succeeded entirely so far as the second respondent is concerned, the second respondent will pay half the plaintiff''s costs in

this appeal. The first respondent will bear his own costs.

A preliminary objection was raised that no appeal would lie against the Subordinate Judge''s order, but so far as the order relates to the second

respondent, the appeal would lie under Order XXII, Rule 10; but inasmuch as that rule is not applicable to the first respondent, the appeal would

not lie under Order I, Rule 10; but as the order is one and the same, we will deal with the case so far as the first respondent is concerned in the

revision petition, which has also been filed. There will be no costs in the revision petition.