A decree against a benamdar fully binds the real owners, whether they are joined in the suit or not. The rejection of an application to be made parties does not prevent the mortgage decree from operating as res judicata against the defendants.

JUDGMENT

Chakravartti, J. - This appeal arises out of a suit under Order 21, Rule 103, Civil P.C., brought by the decree-holders auction purchasers. The plaintiffs purchased the properties in suit in execution of a mortgage decree, but were resisted by the defendants in their attempt to obtain possession. A proceeding under Order 21, Rule 97 of the Code resulted in favour of the defendants. Thereupon, the plaintiffs brought the present suit which has been decreed by both the Courts below. The defendants have appealed.

2. The facts are no longer in dispute and may be stated as the common case of the parties in the present appeal. On 4-2-1932, one Phanibhusan Banerjee, to whom the properties originally belonged mortgaged them to the father of the plaintiffs for a sum of Rs. 1499. This Phani was an officer of defendants 2 to 6 and shortly before the mortgage, had made a written acknowledgment to his masters of a liability for Rs. 8400. Defendants 2 to 6 sued Phani for this amount and, on some date in 1933, obtained a decree for Rs. 1599. When the decree was put into execution, Phani applied successfully for adjudication as an insolvent and a Receiver was in due course appointed for his estate. On 15-2 1935, the Receiver sold the properties in suit to one Sudhakar Banerjee, subject to the mortgage. Sudhakar was the Revenue Agent of defendants 2 to 6 and his purchase was on their behalf as their benamdars.

3. Sudhakar died on 22-4-1935. On the 25th May following, the plaintiffs, whose father had meanwhile died, commenced a suit upon the mortgage against the mortgagor Phani, the Receiver-in-insolvency and the sons of Sudhakar. Only one of the latter had attained majority. On 3-7-1935, he filed a written statement in which he stated that he had no interest in the property as his father had been a mere benamdar for defendants 2 to 6 and that the real owner was Prakash Chandra Ghose, defendant 1 of the present suit, who should be made a party. Defendant 1, we were told is the karta of the family to which defendants 2 to 6 belong and their interests are the same. On 14-9-1935, defendants 1 to 6 them-selves made an application to be made parties and along with their application, filed a deed of release dated 8-15-1935 and executed by the major son of Sudhakar on behalf of himself and as the guardian of his minor brothers in favour of defendant 1. The Court rejected this application on 23-9-1935 by an order to which fuller reference will be made later. Thereafter, on 14th November, the minor sons of Sudhakar, who were represented by a Pleader guardian, filed a written statement which contained no disclaimer of interest or plea of benami, but, on the other hand, a challenge to the mortgage as a collusive and colourable transaction. It was exactly a written statement of the kind which a mortgagor, interested in the mortgaged properties, might file. The suit was strenuously contested by the minors whose Pleader was paid by defendant 1. The latter himself and an officer of defendants 2 to 6 went to the witness box. The defence succeeded in the trial Court which held the Mortgage to have been a collusive transaction and dismissed the suit, but on appeal the decision was reversed and the suit decreed. The rest of the story has already been told.

4. By the order of 23-9-1935, on which a great deal of argument was addressed to us the application of defendants 1 to 6 to be joined as parties to the mortgage suit was rejected mainly on the ground of delay. But the Court added two other reasons and also made an observation. It appears to have been somewhat sceptical about the bona fides of the deed of release and observed that it "smacks of the nature as though defendants 3-7 executed it after getting scent of the present suit". Then it observed that the question whether the ostensible mortgagor was a benamdar for somebody else did not properly come within the purview of a mortgage suit, but such a question would inevitably arise if the applicants were m