Judgement

Appeal (No. 154 of 1924) from a decree of the High Court (March 17, 1923) affirming a judgment of the Subordinate Judge of Cuttack.

The first respondent, the mahant of a math, executed on November 6, 1906, a mortgage to the appellant of certain properties of the math to secure a loan of Rs. 25,000 and interest at 1 per cent, per mensem ; he also covenanted by the deed to pay personally the sum due.

The present suit was brought by the appellant to enforce the mortgage. The first defendant (the mahant), by his written statement, pleaded that the money was not borrowed for necessity or for the benefit of the thakurs, and that the suit was bad for want of necessary parties, as the thakurs had not been joined.

The Subordinate Judge held that the thakurs were necessary parties in order to enforce the mortgage against the property; he was also of opinion that the money was not borrowed for legal necessity. He accordingly made only a personal decree against the respondents.

The High Court (Jwala Prasad and Foster JJ.) held that the thakurs were not necessary parties, but they agreed with the finding of the trial judge as to the absence of legal necessity. The decree of the trial