JUDGMENT

1. This is an appeal under Section 45 of the Encumbered Estates Act. The appellants, who are father and sons, filed an application under Section 4 of the Act impleading Lala Kundan Lal, respondent, as creditor-opposite-party. Lala Kundan Lal filed a written statement in which he stated that he had obtained a decree on his mortgage and also contended that all those persons who were parties to the decree in his favour as judgment-debtors were also necessary parties to the present application under Section 4, Encumbered Estates Act. On this objection the learned Special Judge ordered that all the persons named by the respondent-opposite-party in para. 9 of his written statement should be made parties to the case before him, and directed the applicants (the appellants) to take necessary steps for the purpose. It is against this order of the learned Special Judge that the present appeal has been brought. It is conceded before us that the persons ordered by the Court below to be impleaded in the case are subsequent transferees of the property mortgaged to the respondent. It is argued that Section 9(5), Encumbered Estates Act does not contemplate the inclusion of subsequent transferees of a mortgaged property in the expression "joint debtors" but that it refers to those persons only who have borrowed money jointly and are consequently personally responsible to repay the debt. We are unable to accept this argument. Under Section 2(a) "debt" includes any pecuniary liability except liability for unliquidated damages. The definition therefore covers a decretal debt also so that the persons mentioned in para. 9 of the respondent's written statement must be deemed to be joint debtors with the present appellants and as such the Special Judge shall have to apportion the debt among them. In fact it appears to us that Section 9(5)(a) of. the Act. makes it compulsory that joint debtors, who have not joined in making the application under Section 4, should be made parties to proceedings before the Special Judge and so it was incumbent on the learned Judge to make the order that he did when it was brought to his notice that persons other than the applicants were parties to the respondent's decree as judgment-debtors.

2. It was argued that under Section 18 of the Act the effect of the decree to be passed by the Special Judge would be to extinguish the mortgage previously held by the opposite party respondent, so that the decree which will be given to him by the Special Judge will be a simple money decree and as the other judgment-debtors of the respondent's decree were not parties to the original loan they would not be affected by the decree to be passed by the Special Judge. No doubt the decree of the Special Judge is to be deemed a simple money decree but it will have to be executed in relation to the same mortgaged property, and this being so it is necessary that those persons who are interested in the property as subsequent transferees should be made parties to the proceedings under the Act, and it is, we think, on this principle that Section 9(5)(a) has been enacted. It was also sought to show that while the respondent will not be prejudiced by the persons mentioned in the Court's order not being impleaded, the applicants-appellants will suffer loss by their being made parties. We think, however, that it is not necessary to consider what would be the effect of the said persons being made parties on the applicants' interests when it is perfectly clear that under Section 9(5)(a) of the Act it is imperative that they should be made parties. The appeal is without force and is dismissed with costs.