Indian Kanoon - Search engine for Indian Law

31. The decisions cited by Mr. Mukherjee are therefore clearly distinguishable. in my opinion there is no such conflict of decisions as would necessitate a reference of this matter to a Full Bench.

32. Mr. Mukherjee also referred us to a passage from Jones on Mortgage, para. 1395. The paragraph says that the right of a party interested in the equity of redemption who is not joined as a defendant in a suit on the mortgage is only to redeem and that such a person cannot maintain ejectment against the purchaser in execution of the mortgage decree. The above paragraph has to be read along with paras. 1792, 1793 of the said book. If the paragraphs are read together, the conclusion follows that if the owner of the equity of redemption either in whole or in part is not made a party to the mortgage suit a decree for foreclosure or sale would leave unaffected the rights of the excluded party including his right to remain in possession. The same view is expressed by Dr. Ghose in his law of Mortgage, 5th Edn. Vol. 1, p. 656. The view already expressed by me does not militate against the observations contained in the said treatise but receives support from the same.