Norman Macleod, C J - (1.)The plaintiffs filed this suit for redemption and possession of the plaint property alleging that the mortgage deed was passed by one Anna Dhondiba deceased to the grandfather of the 1st defendant on the 10th January 1854. The period for the payment of the mortgage was two years, and the suit was filed on the 6th of January 1916, four days before the right to redeem was barred by the law of limitation. The heirs of Anna, the mortgagor, appear in the pedigree at p. G, and for the purposes of this second appeal it must be taken as proved that Limba and Sugandha, daughters of Renuka, are two of the heirs of Anna, and were, therefore, interested in the equity of redemption. They were not parties to the suit, and accordingly an issue was raised whether the plaintiffs were entitled to maintain the suit without making Limba and Sugandha parties. That issue was found in the negative. The plaintiffs then presented an application under Order I, Rule 10, asking the Court to make them co-plaintiffs. The learned Judge in the trial Court dismissed the application, and accordingly dismissed the suit.
(2.)Undoubtedly the rights of Limba and Sugandha at the time this application was made to redeem the mortgaged property were barred. But the learned Judge does not seem to have considered whether they could have been added as co- defendants. However, this point was considered in appeal, and apparently the learned District Judge considered that the plaintiffs made no application for their being brought on record, but that they asked the Court to exercise its powers under Order I, Rule 10, and add Limba and Sugandha as party defendants. The learned Judge, therefore, considered the plaintiffs case from that point of view, and came to the conclusion that Limba and Sugandha could not be added as defendants under Order I, Rule 10, Sub-rule (2) because the suit was barred so far as they were concerned at the time the application for adding them was made, so they could not be added as parties having regard to Section 22 of the Indian Limitation Act.
(3.)The learned Judge thought that the ruling in Guruvayya v. Dattatraya (1903) I.L.R. 28 Bom. 11 was not, applicable. It was perfectly clear that any one of several parties entitled to the equity of redemption of mortgaged property was entitled to file a suit to redeem, but owing to the provisions of Order XXXIV, Rule 1, all other parties who were interested in the equity of redemption were necessary parties to the suit. Therefore the suit as framed was defective, and as long as Limba and Sugandha were not brought on the record, the plaintiffs suit was bound to fail.