Man Mohan and Others vs Ram Prasad and Others

Aikman and Karamat Husein, JJ.—The appellants obtained a decree for foreclosure against one Phul Singh, who is father of some of the

respondents and grandfather of the others. It is found that, although the appellants had notice of the interests of the sons and grandsons, they did

not implead them in the suit for foreclosure. The respondents brought the suit out of which this appeal arises asking to be given an opportunity to

redeem the mortgage. They did not dispute their liability to satisfy the debt incurred by the mortgagor. The Court of first instance held that the suit

was not maintainable. On appeal the learned District Judge held that it was, and sent the case back for decision on the merits. The present appeal

has been preferred against this order of remand.

It is contended that we ought to apply to this case the principle of the ruling of the Full Bench in Debi Singh v. Jia Ram ILR (1902) All. 214.

That was a case in which the sons of a Hindu father sued to get back from innocent purchasers their share of the family estate, which had been sold

in execution of a decree obtained upon a mortgage by their father in a suit to which they were no parties. Their claim was based solely on the

ground that they had not been parties to the suit, in which the decree was obtained. In the judgment of the learned Chief Justice in that case, which

was concurred in by Knox, J., stress is repeatedly laid on the fact that the plaintiffs wished to oust strangers--see pages 233, 225, and particularly

226, of the judgment. In this case all that the plaintiffs ask is that they should be given an opportunity to redeem the mortgage which was foreclosed

by the appellants, who knew of the plaintiffs'' interest and yet did not make them parties to the suit to foreclose. In our opinion we should not be

justified in extending the principle laid down in the case relied on behalf of the appellants to the present case. It was owing to the appellants'' failure

to comply with the provision of law that the respondents did not have an opportunity to redeem. In our opinion the observations of Banerji, J., in

the Full Bench case, Bhawani Prasad v. Kallu ILR (1895) All. 537, at page 548 of the judgment, and the observations of Edge, C.J., at page 562

and following pages are distinctly in favour of the view taken by the learned District Judge. The judgment of the Chief Justice in that case was

concurred in by three other Judges who took part in deciding the case. In oar opinion the appeal fails, and it is dismissed with costs.