JUDGMENT

Henry Richards, C.J. - This appeal arises out of a suit for sale on foot of a mortgage. The mortgage was dated the 14th of November 1870. The mortgagee was one Dharam Singh, husband of the plaintiff, and the mortgagor was one Naiti Singh. Tilok Ram purchased the mortgaged property on the 7th of January 1889 and the defendants Hori Lal Nath are the sons of Tilok Ram who is now dead. They pleaded amongst other things that their four sons constituting with themselves a joint Hindu family were not made parties to the suit. This is the plea with which we are concerned in the present appeal, Having regard to the respective dates of the mortgage and of the institution of the suit, the non-joinder of parties, if such there was, could not be cured by making the sons of Hori Lal and Jagan Nath parties, because the suit at the time their absence was pleaded was barred by limitation. Order XXXIV, Rule 1, of the Code of Civil Procedure, provides as follows:

Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of re-demption shall be joined as parties to any suit relating to the mortgage.

2. It is contended that all the members of the joint family have an interest in the right of redemption and that as they were not made parties originally and cannot now be added as parties, the suit should be dismissed.

3. I do not think that the words in the rule " subject to the provisions of this Code" can help the plaintiff. It is true that the Code provides that no suit shall fail for want of parties, but this does not mean that the defendants cannot insist on having all the necessary parties before the Court, either by their being made parties when the suit was instituted or being afterwards added as parties. I, therefore, think that, unless in the circumstances of the present case, Hori Lal and Jagan Nath can be said to represent their sons, or in other words that the sons are really parties to the suit through Jagan Nath and Hori Lal, the suit should be dismissed. All the members of the joint Hindu family have beyond doubt an "interest" in this mortgaged property.

4. It has been found by the Court below that Hori Lal and Jagan Nath are the managers of the family and that their names alone appear in the village record. I think that we should accept this finding, and my judgment presumes that Jagan Nath and Hori Lal are the managers of the joint Hindu family made up of themselves and their four sons. I propose in the first instance to deal with the question apart from decided cases.

5. Prior to the passing of Act V of 19C8 (the present Code of Civil Procedure), the" enactment dealing with parties to a suit relating to a mortgage was Section 85 of the Transfer of Property Act. That section is as follows:

Subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter relating to such mortgage provided that the plaintiff has notice of such interest.

6. The only change material in any way to the present question is the dropping out of the words "provided that the plaintiff has notice of such interest" in Order XXXIV Rule 1. It must be remembered that neither Section 85 of the Transfer of Property Act nor Order XXXIV Rule 1 was any departure from the well established practice of the Courts. It was always necessary that persons interested in the mortgaged property should be made parties to a suit relating to the mortgage. If the mortgage-debt' belonged to a number of persons, they should all be parties so that the person paying off the mortgage might get a good discharge.

7. The persons to whom the property mortgaged belonged were entitled to be parties to enable them to defend the suit and have the amount due (if any) properly ascertained. I do not think, therefore, that any greater importance should be attached to the absence of some of the members of the