A mortgage suit does not abate for want of impleading all the legal representatives of the deceased mortgagor, if the plaintiff has impleaded all the legal representatives known to him and there is no fraud or collusion between the parties to the suit.

( 1 ) THE relevant facts leading to the present appeal are as follows : On August 4, 1941, one Debendra Chandra Roy (hereinafter referred to as Deben) and his son Indu Bhusan Roy (hereinafter referred to as Indu) executed a mortgage in favour of the Respondent No. 1, the Calcutta Commercial Bank, in liquidation (hereinafter referred to as the Bank), to secure the repayment of a sum of Rs. 8,000/- and odd. The mortgaged property was a piece of rent-free Brahmottar land, situate in Belghoria in the district of 24 Parganas, the mortgagors holding permanent intermediary interest therein.

( 2 ) IN March 1950, a suit was instituted by the Bank for enforcement of the said security against Deben and his two sons Santi and Indu being Defendants Nos. 1. 2 and 4 respectively. Two other persons viz. , Soroshi and Aswini were impleaded as Defendants Nos. 3 and 5 respectively.

( 3 ) DEBEN died in May, 1950 leaving behind him, surviving his widow Sm. Saraiu Bala and his 4 sons viz. , the said Santi (Respondent No. 2), Indu (Respondent No. 3 ). Haridas (Appellant No, 1) and Narayan (Respondent No. 4), Deben left also one daughter viz. , Sm. Sadhana Roy Chowdhury being Appellant No. 2 in the above appeal.

( 4 ) ON July 1. 1954 before the Hon'ble Mr. Justice Bachawat, the plaintiff Bank conceded that it was not entitled to claim relief against all the parties to the suit jointly. The learned Judge accordingly gave leave to the plaintiff to amend the plaint. Paragraph 7 of the original plaint was allowed to be deleted and a fresh paragraph was allowed to be substituted. The names of Soroshi and Aswini were deleted from the category of the Defendants. The total revised amount claimed, was for Rs. 13,000/- and odd including a sum ot Rs. 4,500/- and odd, being on account of interest, calculated upto 28th February, 1950.

( 5 ) ON or about July 9, 1954 a Master's Summons was taken out on behalf of the plaintiff Bank, inter alia for setting aside the abatement, caused on the death of Deben and for substitution of the names of his two sons Santi and Indu. Respondents 2 and 3 in the above appeal as the legal heirs and representatives of the deceased Deben. All the papers in the suit are not before us, but we find in the affidavit filed in July 1950, (1954?) that attempts were made by the Liquidator of the Bank to find out who are the legal heirs and representatives of the deceased Deben.

( 6 ) IN August 1955 the order of abatement was set aside, the death of Deben was recorded and Santi and Indu were impleaded for self as well as the sons, heirs and legal representatives of the said deceased Deben.

( 7 ) IN November of the said year, Santi and Indu filed their written statement inter alia stating generally, that all the legal heirs of the deceased Deben have not been brought on the record. They, however, did not specifically state that they had two other brothers and one sister, as well as their widowed mother, as stated above. In spite of the said defence in the written statement as to the non-impleading of all the legal representatives of the deceased Deben, the mortgage suit was decreed in the preliminary form on September 6, 1956 and that again by consent.

( 8 ) ON July 23, 1962 Deben's widow, Sm. Saraiu Bala died leaving behind her surviving, the aforesaid four sons and the said daughter Sm. Sadhana, since married.

( 9 ) AFTER the said preliminary decree, the special Referee appointed by the Court, submitted his report on September 14, 1965 in which we find that a sum of Rs. 25,000/- and odd was due to the Bank (in liquidation) including the interest, calculated upto 31st August, 1964. Objection was taken to the said report and the matter came up before Justice S. K. Datta, who by his order, dated June 7, 1966 varied the said report to the extent that a sum of Rupees 15,380/- was due and payable by the defendants to the Bank, calculated upto the date of the said order with interest @ 6 per cent per annum.

( 10 ) THE Bank thereaft