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TMI Blog1958 (4) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the suit to recover ₹ 8,500. Unfortunately they did not make either Mahomed Sultan or the Official Receiver, in whom the estate of Mahomed Sultan vested, as party to the suit. Respondents 1 to 3 and 5 claim to have purchased the interests of the mortgagor and the other respondents claim some interest either as alienees of portions or lessees of the hypotheca. 2. Respondents 1 to 3 and 5 and 6 objected to the frame of the suit in that the interest of Mahomed Sultan in the mortgage was not represented therein. The plaintiffs thereupon filed I.A. No. 524 of 1948 to implead the Official Receiver as party defendant and to amend the plaint. That application was ordered on 14th December, 1948, but it is admitted that on the date when the application was filed the suit had become barred in regard to the claim of Mahomed Sultan. The contesting respondents raised several questions but the most important of them were covered by issues 3 and 6 in the suit. They raised the question whether the plaintiffs were entitled to sue for their share of the mortgage amount alone and whether the suit as a whole was barred by limitation, as a necessary party had been impleaded out of time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security. In Huthasanan Nambudri v. Parameswaran Nambudri (1898) I.L.R. 22 Mad. 209 at 211, Subramania Iyer, J., observed as follows: The pleader for the respondent urged strongly that the rule entitling a person to redeem the whole in circumstances like the present is opposed to principle in as much as a mortgagee, for whose benefit the rule that a mortgage is indivisible has been introduced, may waive it. But a mortgage for an entire sum is from its very purpose indivisible; a division of such a mortgage, borrowing the language of a text writer, is conceivable in theory and may be carried out in practice. But in order that a mortgage may fully attain its end of securing satisfaction of the entire obligation in the rank and with the efficacy which the law or the will of the parties determined, it is essential that it should not suffer any disintegration. This character of indivisibility exists not only with reference to the mortgagee, who may generally be more benefited thereby, but also with reference to the mortgagor. And save as a matter of special arrangement and bargain entered into between of all the persons interested, neither the mortgagor nor the mortgagee, nor per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irs of a mortgagee filed a suit to recover the whole of the mortgage debt by sale of the secured properties without joining the other co-sharers in the mortgage either as plaintiffs or as defendants. 4. They were added subsequently at a time when the claim in respect of the mortgage had become barred by limitation. The learned Judges held that the suit should be deemed to have been instituted only when all the co-sharers, mortgagees, were impleaded and as by that time the period of limitation had expired, the suit failed. The basis of this decision was that all the mortgagees were to be represented in the suit not merely by virtue of the procedural law, Order 34, Rule 1, Civil Procedure Code, but by reason of substantive law and the contract between the parties which rendered the mortgage indivisible. It was held that Order 1, Rule 9, Civil Procedure Code, cannot be applied to save such a suit as it is not the right of any co-sharer mortgagee to obtain a decree with respect to his aliquot share of the mortgage money. The principle therefore is that there is indivisibility of the mortgage both in regard to the debt as well as in regard to the security and that no suit can be file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for taking accounts of the total dues under the mortgage, and for the sale of the whole of mortgaged premises for such dues. On the question of amount of Court-fees to be paid for such a suit, the learned Judges expressed a different view. 6. We have referred to the decision in Adiveppa v. Rachappa I.L.R. (1948) Bom. 158, where it was held that a suit filed at the instance of some of the co-mortgagees without impleading the rest was defective and could not be held to be legally laid. Rameshwar Bux v. Ganga Bux , followed the Bombay Full Bench decision in Advieppa v. Rachappa I.L.R. (1948) Bom. 158. In Gopalaswami Ayyar v. Nataraja Chettiar (1947) 1 M.L.J. 279, the question arose in a different form. Two of the three mortgagees filed a suit on the foot of the mortgage for recovery of the whole amount, impleading the third mortgagee as one of the defendants. The Court, however, passed a decree only for two thirds share of the amount due to the plaintiffs and directed the other mortgagee to recover his one third share in a separate suit. The mortgaged properties were not sold through Court but were sold privately to the appellant who paid off the decree debt. In a suit by the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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