Order 34 Rule 1 of the Civil Procedure Code, 1908, which requires all persons having an interest in the mortgage security or in the right of redemption to be joined as parties to any suit relating to the mortgage, is subject to the provisions of Order 1 Rule 9, which provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties.

SHARMA, J.

( 1 ) THIS is one of the defendants appeal and arises out of a suit for redemption, filed by the plaintiff respondents against the defendant appellants in the Court of the Munsiff, Bharatpur.

( 2 ) IT was alleged that certain shops in the town of Bharatpur were mortgaged by Shankerlal, father of the plaintiff No. 1, Gopi Nath, plaintiff No. 2 Bal Kishen, and grandfather of Prem Narain minor, plaintiff No. 3, on the 28th of June 1910 for a consideration of Rs. 500/-in favour of the defendants Chhoteylal, Nand kumar, Badri Prasad and Dwarka Prasad. The rate of interest agreed upon was rs. 1/4/- per cent, per mensem. It was recited in the mortgage deed that the rent of the mortgaged property at the time of the mortgage was Rs. 5/-per mensem. This rent would be credited towards interest. If the rent realized in future exceeded the amount of monthly interest, the excess would be credited towards principal.

( 3 ) THE plaintiffs alleged that Rs. 300/-were paid towards the mortgage money and the rent of the mortgaged property had been in excess of the monthly interest. Therefore, nothing was due to the mortgagees on account of principal and interest of the mortgage. On the contrary, something would be found due to the mortgagors on an account being taken. It was alleged that Shanker Lal had died and the plaintiffs were his legal representatives. They asked the defendants to redeem the property, but they refused. It was, therefore, prayed that the property be redeemed and that an account be taken from the mortgagees and whatever amount was found due to the plaintiffs be awarded to them.

( 4 ) THE defendants admitted the mortgage, but pleaded, inter alia that they were not given possession at the time of the mortgage but it was delivered to them after the floods of 1924. The payment of Rs. 300/-was denied and it was also pleaded that a sum of Rs. 2,767/3/-was due to the defendants, out of which only Rs. 97/-had been paid. The plaintiffs could not, therefore, redeem the property without payment of Rs. 2,670/3/ -. It was finally pleaded that the suit was bad for non-joinder of necessary parties as one of the sons of shankerlal mortgagor, namely Jugal Kishore was not joined as a party to the suit.

( 5 ) THE learned Munsiff held that Rs. 300/-had been paid by the mortgagors and that the balance of the mortgage money and interest had been realized out of the rent realized by the mortgagees and that Rs. 196/- were due to the plaintiffs from the defendants. He further held that Jugal Kishore had been adopted by Lalita Prasad and was, therefore, not interested in the mortgage. His joinder was not necessary. He consequently docreed the suit for redemption as well as for the recovery of Rs. 196/- against the defendants.

( 6 ) THE defendants went in appeal and the learned. Civil Judge, Bharatpur, upheld the decree of the first Court and dismissed the appeal. The defendants went in second appeal to the High Court of Matsya which framed an issue on the point whether Jugal Kishore had been validly adopted by Lalita Prasad and remanded the case to me first appellate Court to record the evidence which the parties chose to adduce on the point of the alleged adoption of Jugal Kishore and submit the evidence as well as its findings to the High Court within the time fixed in the Judgment.

( 7 ) THE learned appellate Court recorded the evidence of the parties on the point of adoption and submitted the record with the evidence and its finding on the issue of adoption. Its finding is that Jugal Kishore was validly adopted by Lallita prasad.

( 8 ) WE have heard the learned Counsel for both the parties. So far as the question as to what is due to the mortgagors from the mortgagees is concerned, it was conceded by the learned Counsel for the appellants that it has become a finding of fact and it cannot be challenged in second appeal. The only point that was argued was that Jugal Kishore was a necessary party and his non-joinder in the