Ramachandra Iyer, J.-

This is an appeal from the judgment of Chandra Reddi, J., in Appeal No. 13 of 1950, reversing the decree and judgment of the learned Subordinate Judge, Cuddalore, in O.S. No. 19 of 1948. The plaintiffs who are the appellant here filed a suit on the foot of a mortgage, Exhibit A-1, dated 25th February, 1933, executed by the 4th respondent in favour of one Rokia Bi. Rokia Bi died in 1937, leaving as her heirs four sons and one daughter. One of the sons, Mahomed Sultan, was adjudicated an insolvent in I. P.No. 24 of 1933 on the file of the Sub-Court, Cuddalore, and his estate became vested in the Official Receiver of South Arcot. The appellants who represent the interests of all the heirs of Rokia Bi except Mahomed Sultan filed a suit to recover the mortgage debt in the Sub-Court, Cuddalore. Their claim was only in regard to their 7/9th share in the mortgage. They valued their share of the mortgage amount at Rs. 8,750 and giving up their claim in respect of Rs. 250 filed the suit to recover Rs. 8,500. Unfortunately they did not make either Mahomed Sultan or the Official Receiver, in whom the estate of Mahomed Sultan vested, as party to the suit. Respondents 1 to 3 and 5 claim to have purchased the interests of the mortgagor and the other respondents claim some interest either as alienees of portions or lessees of the hypotheca.

Respondents 1 to 3 and 5 and 6 objected to the frame of the suit in that the interest of Mahomed Sultan in the mortgage was not represented therein. The plaintiffs thereupon filed I.A. No. 524 of 1948 to implead the Official Receiver as party defendant and to amend the plaint. That application was ordered on 14th December, 1948, but it is admitted that on the date when the application was filed the suit had become barred in regard to the claim of Mahomed Sultan. The contesting respondents raised several questions but the most important of them were covered by issues 3 and 6 in the suit. They raised the question whether the plaintiffs were entitled to sue for their share of the mortgage amount alone and whether the suit as a whole was barred by limitation, as a necessary party had been impleaded out of time.

The learned Subordinate Judge held that as the Official Receiver was brought on record the suit was not barred and that the plaintiffs could maintain the suit for their 7/9th share. The learned Judge therefore passed a preliminary mortgage decree. Respondents 1 to 3 filed an appeal against that decree to this Court. Chandra Reddi, J., who heard the appeal held that the omission to implead the Official Receiver as a party defendant before the expiry of twelve years from the date fixed for redemption of the mortgage was fatal to the whole suit and, in that view, he dismissed the suit. The plaintiffs have, therefore, filed the above appeal under clause 15 of the Letters Patent. Mr. K. S. Desikan appearing for the appellants contended that the appellants could maintain the suit to recover their share of the mortgage amount and that the impleading of the Official Receiver after the period of limitation had expired in respect of the claim on the mortgage would not entail a dismissal of the suit in regard to the appellants’ claim. He relied in this connection upon a decision of the Patna High Court in Siaram Singh v. Jugutdeo Singh1 . In that case one of the two persons entitled to the mortgage money filed a suit to recover his share. The learned Judges held that a decree could be passed for the amount claimed in the absence of the other person interested in the mortgage money. They considered the question only from two points of view, namely, Order 1, rule, 9, Civil Procedure Code, and the hardship to the mortgagor. On the first question they held that as the controversy in the case was only in regard to the actual amount claimed, namely the share of the plaintiff and as the other mortgagee was not interested in the result of the suit, the omission to implead him would not entail the dismis

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