Judgment

SARKAR, CJI. : This appeal arises out of a suit filed by the respondent Vijay Kumar against the appellant on February 9, 1954 to enforce a mortgage. The plaint stated that the appellant executed the mortgage on December 13, 1934 in favour of Tarabai the proprietor of the firm of Narayandas Chunilal, and that the amount secured on it became due on December 13, 1943.Vijay Kumar claimed that he was adopted by Tarabai on July 16, 1948 as a son to her deceased husband Motilal Hirakhanwala and became entitled to enforce the mortgage as her sole heir on her death on April 23, 1952. After setting out the particulars of the mortgage, Vijay Kumar asked for decree for foreclosure. In his written statement appellant admitted the mortgage but denied that Vijay Kumar had been adopted by Tarabai and stated that she had died leaving as her heirs three daughters, Rajkumar, Premkumari and Mahabalkumari the mother of Vijay Kumar. Besides denying Vijay Kumar s right to enforce mortgage, the appellant took various other defences to the action to which it is unnecessary for the purpose of this appeal to refer.

2. The learned District Judge who heard the suit, held that the adoption of Vijay Kumar had not been established and on that ground alone he dismissed it, having rejected the other defences raised by the appellant. Vijay Kumar appealed against the judgment to the High Court of Hyderabad but that appeal was on a subsequent reorganisation of States, transferred to the High Court of Bombay. Thereafter on November 3, 1958, Vijay Kumar made an application in the appeal for an order adding his mother Mahabalkumari as a co-plaintiff with him as she was willing to be so added, and her sisters Rajkumari and Premkumari " who were not available for joining in the suit as plaintiffs", as defendants. He also sought permission to add a new paragraph to the plaint, in which after reiterating his right to enforce the mortgage as the adopted son of Motilal and Tarabai, he stated, "In case, however, the plaintiff s adoption is held not to be proved or not to be valid, the estate of Motilal and Tarabai Hirakhanwala and of M/s. Narayandas Chunilal will vest in Tarabai s three daughters, viz. Rajkumari, Premkumari and Mahabalkumari". The prayers in the plaint were also sought to be amended bv asking that the decree sought might be passed in favour of Vilay Kumar and Mahabalkumari.

3. The appellant opposed this application but it was allowed by the High Court. The records of the appeal were, thereafter reconstituted by adding Mahabalkumari as an appellant and Rajkumari and Premkumari as respondents and amending the plaint as sought. Premkumari filed a written statement denying the adoption of Vijay Kumar and his right to enforce the mortgage. Rajkumari never appeared in the proceedings arising out of the suit. The appeal was thereafter heard by the High Court and allowed. The High Court refused to go into the question of adoption and passed a preliminary mortgage decree for closure in favour of Mahabalkumari, Rajkumari and Premkumari and further directed that the suit as brought by Vijay Kumar would stand dismissed. The present appeal has been brought by the original defendant against this judgment of the High Court under a certificate granted by it.

4. I think that Mr. S. T. Desai for the appellant was right when he said that the order adding parties could not be supported. The High Court purported to make the order under sub-r. (1) of O. 1, R. 10 of the Code of Civil Procedure. We were not called upon by counsel to consider any other provision. That sub-rule, however, cannot justify the order, for it only permits addition of a plaintiff and does not provide for the addition of a defendant while the order directs addition of both a plaintiff and two defendants. Was it then properly made in so far as it added a plaintiff ? I do not think so. The addition of Mahabalkumari as a plaintiff could not be made under the sub-rule unless it was necessary for the deter