JUDGMENT

1. The suit giving rise to the present appeal was brought by Shanti Swarup, respondent, for a declaration that the preliminary and the final decrees for foreclosure passed in suit No. 92 of 1930, of the Court of the Subordinate Judge of Cawnpore in favour of the contesting defendants are a nullity and not binding on him. The said decrees were for the foreclosure of a mortgage-deed dated 22nd June 1928, executed by Chhadammi La,l the grandfather and Jagannath Prasad the father of Shanti Swarup plaintiff-respondent. The mortgage was for a sum of Rs. 7,000 and was in favour of the contesting defendants.

2. Chhadammi Lal, Jagannath and Shanti Swarup were impleaded as defendants in the foreclosure suit. Shanti Swarup was a minor, and his father Jagannath Prasad was appointed as his guardian for the suit. The plaintiff-respondent assailed the validity of the decrees mentioned above on the ground that Jagamnath being himself one of the executants of the mortgage-deed was not in a position to raise appropriate pleas on his behalf in bar of the claim for foreclosure of the mortgage and, as such was not a proper person to be appointed as his guardian ad litem. The plaint gave no indication of the pleas that according to it the plaintiff could be successfully raised on his behalf in the foreclosure suit. At the trial however it was suggested on behalf of the plaintiff-respondent that Jagannath omitted to plead that the mortgage was not for legal necessity, and that the rate of interest stipulated in the mortgage-deed was excessive, and lastly, that the Court should in any case instead of passing a decree for foreclosure pass a decree for sale in favour of the mortgagees, and the omission of Jagannath to raise these pleas was due to the fact that he himself was one of the mortgagors and resulted in serious prejudice to the plaintiff.

3. The defendant's contested the suit. They denied the allegation of the plaintiff that Jagannath was not a proper person to be appointed as the guardian ad litem of the plaintiff in the foreclosure suit, or that he omitted to take such pleas as could validily be raised in bar of the claim for foreclosure. They alleged that the pro-, party mortgaged by the deed of 1928 was the self-acquired property of Chhadammi Lal and the plaintiff had no interest in the same, and accordingly contended that even if Jagannath was not a proper person to be appointed as the plaintiff's guardian, the plaintiff was in no way prejudiced, as he had no interest in the mortgaged, property. The defendants therefore challenged the right of the plaintiff to the relief claimed by him.

4. There was abundant evidence in the case to justify the assertion of the defendants that the mortgaged property was the self-acquired property of Chhadammi Lal, and, both the Courts below have recorded a finding to that effect. But the case put forward by the plaintiff in the Courts below was that Chhadammi Lal had thrown the property into the common stock and, as such, the property became the property of the joint family cosisting of Chhadammi Lal, Jagannath and the plaintiff. The trial Court overruled the contention of the plaintiff that the property was thrown into the common stock and held that the omission of Jagannath to take the pleas mentioned above could in no case be prejudicial to the interests of the plaintiff for the simple reason that the plaintiff had no interest in the mortgaged property. The trial Court also considered the question whether or not the debt secured by the mortgage was raised for legal necessity, and answered the question in the affirmative. It therefore held that Jagannath could not successfully raise the plea of want of legal necessity on behalf of the plaintiff-respondent in the foreclosure suit. It further observed that Jagannath had actually pleaded in the foreclosure suit that the rate of interest was texcessive, and, the Court had given effect to that plea by reducing the rate of interest. In view of these findi