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1969 Supreme(AP) 64
Andhra Pradesh High Court
Judges : KODANDA RAMAYYA
Rambuddi Veeraswamy - Appellant
Versus
Rambuddi Jangammayya - Respondent
Decided On : 04-24-69
In a suit for redemption of mortgage, persons claiming paramount title independently of the mortgagor or mortgagee are not ordinarily necessary or proper parties, but the court may, in its discretion, implead them as parties if it considers it just, proper and necessary in the interests of all parties to adjudicate on the questions relating to paramount title.
Headnote:
IMPLEADING PARTIES IN MORTGAGE SUITS - NECESSARY AND PROPER PARTIES - PERSONS CLAIMING PARAMOUNT TITLE - DISCRETION OF COURT - RELEVANCE OF FACTS AND CIRCUMSTANCES.
Fact of the Case:
Plaintiff filed a suit for redemption of mortgage executed by his father in 1933. Defendants 2 to 4 set up a case of adverse possession and paramount title to all the mortgaged properties. Defendants 5 to 8, legal representatives of a deceased person who had purchased some of the mortgaged properties, were sought to be impleaded as defendants. They resisted the application, contending that their presence was unnecessary as they did not claim title through the mortgage but as alliances of the second defendant, who set up an independent paramount title by adverse possession.
Finding of the Court:
The court held that the defendants 5 to 8 were proper parties to the suit, as they had a direct interest in the mortgaged properties and their presence was necessary for a complete and effective adjudication of the rights of the parties. The court noted that the provisions of Order 34, Rule 1 Civil P. C., which deals with the joinder of parties in mortgage suits, are subject to the provisions of Order 1, Rule 10(2) Civil P. C., which empowers the court to add the name of any person who ought to have been joined as a defendant and whose presence before the court would be necessary to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the suit.
Issues: Whether the defendants 5 to 8 were necessary or proper parties to the suit for redemption of mortgage.
Ratio Decidendi: The court held that the provisions of Order 34, Rule 1 Civil P. C., which deals with the joinder of parties in mortgage suits, are subject to the provisions of Order 1, Rule 10(2) Civil P. C., which empowers the court to add the name of any person who ought to have been joined as a defendant and whose presence before the court would be necessary to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the suit. The court further held that the question as to who are all the necessary parties to be impleaded as party defendants in a suit on mortgage is not one of jurisdiction but at most one of misjoinder or non-joinder of parties. The court also held that in certain cases, where the court thinks it just, proper and necessary in the interests of all parties to adjudicate on the questions relating to paramount title, it is not only proper but even desirable to implead such parties and avoid multiplicity of litigation.
Final Decision: The court allowed the revision petitions, setting aside the order of the court below, and directed the lower court to permit the supplemental defendants 5 to 8 to file written statements raising all the pleas including the plea of paramount title available to them and frame proper and necessary issues and finally decide the case on merits.
( 1 ) THESE tow revision petitons give rise to an interesting question of law as to whether the persons claiming paramount title independently but not through the mortgagor or mortgagee can be called necessary or proper parties to a suit for redemption of the mortgage.
( 2 ) THE relevant and brief facts that gave rise to these revisions may briefly be stated thus. O. S. No. 60 of 1967 on the file of the Court of District Munisif, Sompet has been filed by the petitioner herein fore redemption of the mortgage executed by his father late Rambuddi Rajayya on 11-9-1933 in favour of the father of the 1st Defendant in respect of Items 1 to 9 of the plaint schedule for a sum of Rs. 200 repayable with interest at 18% per annum. Defendants 2 to 4 had set up a case of adverse possession and paramount title to all the mortgaged properties. It is further averred in the written statement of the 2nd defendant that he sold away Items 7 to 9 in favour of one Rambuddi Haarikrishna. On enquiry, the plaintiff having come to know that the said Harikrishna since died, had sold a portion of those items in favour of one Kalepalli Chinnodu. Defendants 5 and 6, the legal representative of late Harikrishna, Kallepalli Chinnodu, the 7th defendant and his wife Subhjadra being alliances from Harikrishna, were sought to be impleaded as defendants 5 to 8 in I. A. No. 240/67 and I. A. No. 77/68. Defendants 5 to 8 resisted the applications contending inter alia that their presence in the suit would be unnecessary, as they do not claim title to the mortgaged property through the mortgage but as alliances of the second defendant, who sets up an independent paramount title by adverse possession, and hence, it is beyond the scope of the suit. The learned District Munisf, upholding the objection of the respondents, herein, dismissed the applications. Aggrieved by the order of the trial Court, these revision petitions have been filed by the plaintiff.
( 3 ) SRI C. Poornaiah, for the petitioners contended that the defendants 5 to 8 are necessary and in any event, proper parties for a complete and effective adjudication of the rights of the parties as they are interested in t he result of the suit; whereas Sri C. N. Babu fro the respondents contended contra and urged that in a suit for redemption, they are not necessary or proper parties as they did not claim their right through the mortgage but claimed title independently and the scope of the redemption suit being only limited to the parties who claimed interest either form the mortgagor or from the mortgage, they would be prejudiced if they are made parties.
( 4 ) THE point that arises for determination is whether the defendants 5 to 8 now sought to be impleaded by the plaintiff are necessary or proper parties to O. S. No. 60/67, a suit for redemption of the mortgage.
( 5 ) TO appreciate the respective contentions advanced by the counsel, it is profitable to consider the provisions of Orders 34, Rule 1 Civil P. C. which reads thus: "subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. It is true, as contended by Sri Babu, that the object of this rule is to make all persons having an interest in the mortgage-security or in the right of redemption join as a parties with a view to avoid multiplicity of suits. It is also true that the defendants 5 to 8 who are sought to be impleaded as party-defendants by the plaintiff in the suit for redemption, are not claiming any right through the mortgagee or mortgagor but claiming independent title through the 2nd defendant. The provisions of O. 34, Rule 1 Civil P. C. are subject of the provisions of the Code as disclosed from the opening words of the rule. Order 1, R. 2, Clause (2) Civil P. C. empowers the Court to add the name of any person who ought to have been joined as defendant and whose presence before the Court would b
