L. NARASIMHA REDDY, J.

( 1 ) THIS revision under Section 115 of the code of Civil Procedure is filed against the order of the learned Senior Civil Judge, rajole in E. A. No. 77 of 2000 in E. P. No. 12 of 1999 in O. S. No. 51 of l993.

( 2 ) THE relevant facts may be briefly stated as under: respondents 2, 3 and 4 borrowed certain amounts from the 1st respondent. They deposited the title deeds in respect of the property in R. S. No. 42/1 of Kattimanda village admeasuring 35 cents towards security and thereby created equitable mortgage in favour of the 1st respondent. Since the amount was not paid, the 1st respondent filed O. S. 51/93 against respondents 2,3 and 4. After the contest, the suit was decreed and a preliminary decree was passed for sale of the mortgaged property granting time for redemption. Since respondents 2, 3 and 4 failed to pay the amount within the time granted for redemption, steps were taken by the 1st respondent by filing E. P. 12/99 to bring the property to sale in accordance with the preliminary decree.

( 3 ) AT that stage, the petitioner herein filed E. A. 77 of 2000 under Section 47 read with Section 151 CPC claiming that the property in question was conveyed to him through registered sale deed dated 9-1-1991. Since he was not made a party to the suit as required under Order 34 Rule 1 CPC, the decree is not binding on him and the sale cannot be proceeded with. This objection was turned down by the executing Court through its order dated 22-9-2000. The unsuccessful petitioner in E. A. 77/2000 cha llenges the order of the executing Court in this revision.

( 4 ) SRI V. L. N. G. K. Murthy, learned Counsel for the petitioner, submits that the requirement under Order 34 Rule 1 CPC to implead a person interested in the property is mandatory and lapse in that behalf would render the decree not binding upon the person so omitted. He submits that the procedure relating to filing of the suits for redemption of mortgages was earlier provided for under Section 85 of the transfer of Property Act. Section 85 was repealed and the corresponding provision was incorporated under Order 34 Rule 1 cpc. The requirement to implead the persons having interest in the property, under Section 85 was subject to the mortgagee having knowledge about the same as was evident from the proviso contained in it; since such a proviso does not find place in Order 34 Rule 1 CPC, it should be presumed that the Legislature intended that irrespective of the fact whether the mortgagee had the knowledge about the persons having an interest in the mortgaged property, they must be imp leaded, In that view of the matter, the learned Counsel submits that omission to implead the petitioner herein in the mortgage suit was fatal to the decree, at least insofar as the petitioner is concerned. He relied upon several judgments of various High Courts as well as the Supreme court in support of his contention.

( 5 ) SRI M. Narender Reddy, learned Counsel for the 1st respondent, on the other hand, submits that the petitioner and respondents 2 to 4 have colluded in bringing about the sale in question to defeat the right of the 1st respondent to redeem the mortgage; that the 1st respondent had no knowledge about the sale said to have taken place in favour of the petitioner. He submits that the substantive right of a mortgagee is provided under the relevant provisions of the Transfer of Property Act and the procedure stipulated under Order 34 Rule 1 cannot be permitted to defeat the substantive rights. He further submits that a combined reading of the provisions of order 1 Rule 9 and Order 34 Rule 1 would enable the 1st respondent as well as the court to proceed against the property. It is also his contention that in a mortgage transaction the proceedings and auction in the Court are more against the property which is the subject matter of mortgage and the persons claiming interest that too, with a clandestine design, cannot be permitted to defeat the mortgage as su

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