JUDGEMENT :-The suit giving rise to this appeal was filed for recovery of money on the basis of a mortgage by only one of the mortgagees, of his share of money due under the mortgage without any prayer for enforcement of security by sale of the mortgaged property. The suit was time-barred as the mortgage deed was executed on the 22nd of November, 1949 and the mortgage money was payable within three years, i.e., by the 22nd of November, 1952. The period of limitation for such a suit being six years, it expired on the 22nd of November, 1958, the suit itself being filed on the 22nd of November, 1964.

2. When faced with this situation, the plaintiff-appellant claimed that it was a suit for enforcing the mortgage security under Section 67 of the Transfer of Property Act and not under Section 68 of that Act and he sought the permission for making the co-mortgagees also parties to the suit. This application was made long after the expiry of the period of limitation and was rejected by the learned Civil Judge with, the result that ultimately the suit itself was dismissed as time-barred. An appeal was filed before the learned District Judge, Kheri who dismissed the same. This second appeal has been directed against the judgement and decree of the learned District Judge.

3. The only point for consideration in the case is as to whether the amendment ought to have been allowed and the two lower courts were wrong in rejecting the application for amendment.

4. The suit by one of the mortgagees only for a part of the share in the mortgaged property was not maintainable under Order XXXIV. Rule 1 of the Code of Civil Procedure and also Section 45 of the Indian Contract Act as would appear from a Full Bench case of this Court in Rameshwar Bux Singh v. Ganga Bux Singh, AIR 1950 All 598. It was because of this that the appellant to make the other co-mortgagees also defendants in the suit. But he came to move this application long after the period of limitation had expired, as the suit itself was filed on the last date of limitation if it could be treated as a suit for the enforcement of the mortgage security.

5. The rule as laid down in Charan Das v. Amir Khan, AIR 1921 PC 50 is as follows :

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases. .... where such considerations are outweighed by the special circumstances of the case. . . .",

6. In Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100 the order of the High Court refusing leave to amend was upheld by the Privy Council because at the time the leave to amend was sought a new claim under the alleged implied agreement would have been barred by limitation.

7. There are, however, cases where in spite of the period of limitation having expired the amendment has been allowed to be made. In L.J. Leach and Co. Ltd. v. Jardirte Skinner and Co. AIR 1957 SC 357 a suit for damages for conversion was allowed to be converted into a suit for damages for breach of contract. The suit was based on an agreement (document Ex. A) in that case and it was only on account of the misunderstanding of the terms of the agreement that the suit was brought for damages for conversion and not for damages for breach of contract. The suit for damages for conversion would have been in order if the property in question in that case had passed to the plaintiff, but was wrongly withheld by the defendants. But what was found was that the property in question had not passed to the plaintiff and that the defendants had been guilty of a breach of contract in not supplying the property to the plaintiff. It was, therefore, a case based on the misunderstandings of the legal position, there being no dispute as to facts.

8. Again in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil. AIR 1957 SC 363 what happened was t

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