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1 - 10 of 17 (0.28 seconds)Adiveppa Channappa Kittur vs Rachappa Balappa Hosmane on 20 December, 1946
26. An application was made before us on behalf of the appellants asking for the addition of the defendants who had not been impleaded in the suit and the appeal. If the principle enunciated in Adiveppa v. Rachappa, A. I. R. (35) 1948 Bom. 211 : (50 Bom. L. R. 30 F. B.) applies, the question of adding parties will not arise, but even if the application is allowed, the appellants cannot be allowed to sue only for a share. Learned counsel for the appellants clearly stated before us that their claim represented one-third share in the mortgage security. The plaintiffs came to Court on the allegation that they were the sole representatives of the original mortgagees. This was obviously incorrect. They did not choose to implead the representatives of the other mortgagees notwithstanding the fact that the objection of nonjoinder was clearly raised in the written statement. Even if the Court was prepared to exercise its discretion under Order l, Rule 9, it seems clear that the appellants have disentitled themselves to this indulgence in view of their conduct. To allow the appellants to add parties at this stage would be to re-open the whole trial and to send the case back for a fresh investigation.
The Limitation Act, 1963
Parsotam Saran, By His Guardian ... vs Mulu And Ors. on 22 November, 1886
31. The claim offended against the cardinal rule applicable to all cases where the mortgage security is held by a number of persons jointly as tenants in common that all persons having an interest in the debt should join in an action of this nature as plaintiffs as far as possible and those refusing to join as such should be impleaded as defendants in order to enable the Court to pass an effective decree. The defect is of substance and not merely one: of procedure which may be curable by recourse to the provisions of Order 1, Rule 9 and Order 1, Rule 10, Civil P. C., for it violates the doctrine of indivisibility of the mortgage. My learned brother Ghulam Hasan J. has thoroughly examined the case law bearing on the point and it is unnecessary for me to refer to it again. The case is governed by the principles laid down in Parsotam Saran v. Mulu, 9 ALL.
Baldeo Prasad And Ors. vs Bhola Nath on 18 July, 1929
"The reasons for the decision in Baldeo Prasad v. Bhola Nath, 52 All. 134 : (A. I. R. (16) 1929 All. 941) spring from fine considerations of matter of procedure, and not from substantive legal rights, grounded in the contract between the parties."
Section 22 in The Limitation Act, 1963 [Entire Act]
Section 3 in The Indian Contract Act, 1872 [Entire Act]
Nawab Mirza Mohammad Kazim Ali Khan And ... vs Nawab Mirza Mohammad Sadiq Ali Khan on 7 April, 1938
23. Mahmood Ali Khan v. Ali Mirza Khan, 10 Luck. 70 : (A. I. R. (21) 1934 Oudh 220) was also a suit for redemption by one of the mortgagors.
Section 67 in The Transfer Of Property Act, 1882 [Entire Act]
Lachhmi Narain And Ors. vs Babu Ram And Ors. on 2 November, 1934
13. Another decision reported in Lachhmi Narain v. Babu Ram, A. I. R. (22) 1935 ALL 391 : (154 I. C. 437) which was given on 2nd November 1934, may also be referred to. Two suits were brought by two sets of mortgagees claiming their own shares. The mortgage deeds showed that the shares of the mortgagees were specifiad in the deeds obviously with the consent and knowledge of the mortgagor. The learned Judges recognised that ordinarily a mortgage is indivisible both as regards the mortgagees and the mortgage security, the mortgagees being joint tenants of the entire mortgaged property which is charged with every portion of the mortgage money. The learned Judges went on to say: