The central legal point established in the judgment is the impact of a defective constitution of the suit on the rights of a purchaser at a mortgage sale, particularly in relation to Section 89, T.P. Act (4 of 1882).

JUDGMENT

Mukerji, J. - This appeal arises out of a suit which was instituted by the plaintiff for recovery of possession after declaration of title to the lands of Schedule 2 of the plaint. These lands form a part of plot 1, Schedule 1, of the plaint. One Balaram Aeharjya, the predecessors of defendants 5 to 8 executed, a simple mortgage of the lands of Schedule 1 in favour of one Krishna Mangal Sen, the predecessors of defendants 11 to 13, on 10th November 1893. In December 1893 the said Balaram Aeharjya executed a usufractuary mortgage of the lands in suit in favour of the predecessors of defendants 1 to 4 and thereafter in June 1894 sold the said lands to them. In 1900 Krishna. Mangal Sen sued on his mortgage. In that suit defendants 1 to 4 or their predecessor were not parties. Krishna Mangal obtained a decree on 19th January 1901, which was made absolute on 31st November 1903. At the execution sale that followed the father of defendants 9 and 10 purchased the lands of Schedule 1 on 8th June 1904 and they obtained delivery of possession through Court on 13th October 1904. On 25th June 1908 defendants 9 and 10 sold plot 1, Schedule 1, to the plaintiff and put him in possession thereof. Defendants 1 to 4 then instituted a suit against the plaintiff for recovery of possession of the disputed lands and obtained a decree on 16th August 1918 and succeeded in recovering khas possession by eviction of the plaintiff. In the decree pissed as aforesaid a reservation was made is favour of the plaintiff in the following words:

This decree will not, however, affect any equitable right of the defendant (i.e., the present plaintiff) to which he may be entitled under his prior mortgage.

2. The plaintiff then instituted the present suit on 13th August 1921.

3. The Munsif dismissed the suit. The Subordinate Judge has reversed that decision and has decreed the suit declaring the plaintiff's title to the land and ordering that defendants 1 to 4 will be at liberty to redeem the property on payment of Rs. 229-12-0 within two months and that in default of such payment within the said period the right of the said defendants to redeem would be barred and the plaintiff would be entitled to obtain khas possession. Defendants 1 to 4 have then preferred this appeal.

4. The validity of the decree is challenged on various grounds which may be broadly classed under two heads : 1st, as regards the maintainability of the plaintiff's prayer for khas possession ; and 2nd, as regards the basis on which redemption has been allowed.

5. To deal with the first contention it is necessary to consider the rights of the parties, that is to say, those of the plaintiff as transferee from a purchaser at a sale held in pursuance of a decree for sale under the provisions of the Transfer of Property Act (4 of 1882) and those of the contesting defendants, namely, defendants 1 to 4 who are the owners of the equity of redemption but were not impleaded in the suit. As regards the rights of a purchaser at a mortgage sale where the suit is properly constituted, that is to say, where all persons having interest in the property comprised in the mortgage are parties thereto two views fundamentally different from each other, may be taken : he may be regarded as having acquired the equity of redemption as it stood at the date of the mortgage together with the lien of the mortgagee or he may be looked upon as having acquired the property as it stood at the date of the sale, that is to say, the property discharged of the mortgage lien. If the suit is properly constituted as aforesaid the title of the purchaser will be absolute and relate back to the time of the executions of the mortgage and it will make no difference to the rights of the purchaser whichever of the aforesaid two views be proceeded upon. The difference arises where the constitution of the suit is defective, that is to say, where all persons having interest in the property mortgaged have not been joined as parties in the suit.