In a suit for enforcement of mortgage, if there is a partition between the mortgagees and each of them gets a half share in the mortgage money, then in a suit by one of the mortgagees to recover his share of the mortgage money, the other mortgagee is not a necessary party and the suit is not barred by limitation if the plaintiff impleads the other mortgagee as a party within a reasonable time after discovering that he is a necessary party.

Chatterji, J.

1. This is an appeal by the plaintiffs in a suit to enforce a simple mortgage dated the 4th May, 1931.

2. The mortgage in question was executed by the predecessor of defendants 1 and 2 (defendants first party) in favour of Bechan, deceased father of defendants 8 and 9 (defendants fourth party), for Rs. 175/- repayable by the 15th of Baisakh, 1339 Fasli (April-May 1932) with interest at 2 per cent, per mensem. The plaintiffs are the transferees of the entire, mortgaged interest from Be-chans sons defendants 8 and 9 under a bechinama dated the 26th October, 1943. It is, however, now conceded that the mortgage, though executed in favour of Bechan alone, was taken by him on behalf of the joint family consisting of himself and his brother Birju. Defendants 3 to 8 (defendants second party) and defendant No. 7 (defendants third party) are subsequent transferees of portions of the mortgaged property. The suit was instituted on the 4th February, 1944, claiming Rs. 350/-, that is, Rs. 175 as principal and Rs. 175/- as interest; the remaining interest due was given up in view of the provisions of the Bihar Money Lenders Act.

3. The suit was contested by defendant No. 3 alone (who will be referred to hereinafter as the defendant). His defence, so far as material to this appeal, was that by a partition between the mortgagee Bechan and his brother Birju, a half share in the mortgage bond in suit was allotted to Birju, since deceased, and therefore his son Jadu was a necessary party. The plaintiffs accordingly amended their plaint and impleaded Jadu as defendant No. 10 on the 19th December, 1944, by which date the period of limitation had expired. Thereupon the defendant took the further plea that the suit was barred by limitation.

4. The learned Munsif who tried the suit held that Jadu was not a necessary party and the suit was not barred by limitation. He. accordingly decreed the suit for the entire amount. It is difficult to understand how he passed the decree for the entire amount although, on the defendants own case, the plaintiffs acquired only a half share in the mortgage money.

5. On appeal by the defendant, the learned Subordinate Judge held that Jadu was a necessary party, and he not having been impleaded within the period of limitation, the suit was barred by time. He accordingly allowed the appeal and dismissed the suit. Hence this second appeal by the plaintiffs.

6. It is argued by Mr. Harnarain Prasad on behalf of the appellants that admittedly there being a partition between Bechan and Jadus father Birju by which each got a half share in the mortgage money, Jadu was not a necessary party and, therefore, the suit could not be dismissed on the ground of limitation. Mr. Haranarain Prasad concedes that the plaintiffs are not entitled to more than a half share in the mortgage money, that being the share allotted to the plaintiffs vendors father Bechan on partition.

7. The learned Munsif held that the suit is barred by limitation, relying upon a decision of this Court GIRWAR NARAIN V. Mt. MAKBULUN-NISSA, 1 PAT L J 468. There it was held that Order 1, Rule 9 of the Code of Civil Procedure is subordinate to Order 34, Rule 1; and a mortgage being indivisible, if all the parties entitled to a share in the money due on the mortgage are not upon the record the suit must be dismissed in its entirety. In that case one of the persons interested in the mortgage security was impleaded after the expiry of the period of limitation, and, therefore, the suit was dismissed on the ground of limitation. This decision was considered in SITAL PRASAD V/s. ASHO SINGH, 2 Pat 175. In that case Sir Dawson Miller, C. J., who delivered the judgment with which Mullick, J. agreed, held that the combined effect of Order 1, Rule 9, and Order 34, Rule 1, Code of Civil Procedure, in so far as mortgages are concerned, is that all persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties,