Thomas Fredrick Dawson Miller, C.J.

1. The question for decision in this appeal is whether the suit is bad for non-joinder of parties. The appellants on the 12th April, 1919, instituted the suit to enforce a mortgage executed in favour of their father in 1906 by the father of the first two defendants. The mortgage-debt was repayable on the 13th April, 1907 and the limitation period for bringing a suit on the bond expired on the day the suit was instituted. The first two defendants as legal representatives of the deceased mortgagor were alone impleaded as defendants.

2. It subsequently transpired after the issues were framed that one Lachman Jha Narone held a subsequent mortgage on the same property executed in 1910 on which a sum of about Rs. 2,600 was due at the date of the suit. Lachman Jha Narone was subsequently added as a party but too late to save limitation and he pleads that the whole suit is bad for non-joinder of parties under O. 34, R. 1 of the Civil Procedure Code and should be dismissed.

3. [The judgment then stated that the trial Court dismissed the suit and the Court of appeal also confirmed the decree following 1 Pat. L. J. 463 and continued, as follows:-]

4. The case of Girwar Narain Mahton v. Mt. Makhunessa (1916) 1 P.L.J. 468=36 I. C. 542 was a case in which the original mortgagees had died and the suit was instituted by 21 plaintiffs describing themselves as heirs and successors of the original mortgagees. It turned, out, however, that there were other descendants of the original mortgagees who were jointly interested with the plaintiff in the mortgage and who had not been joined as parties up to the time when the case came up for trial, by which time their right to sue was barred by limitation. It was held that, as the mortgage was indivisible, if all the parties entitled to share in the money due on the mortgage were not upon the record, the suit must be dismissed in its entirety.

5. In the course of the judgment it was stated that O. 1, R. 9, of the Civil Procedure Code was subordinate to O. 34, R. 1, which makes it imperative that all persons interested in the mortgage security shall be joined as plaintiffs. As the absent plaintiffs in that case were undoubtedly necessary parties to enable the Court to pronounce a decree in the suit I have no doubt the decision was right but the dictum that O. 1, R. 9 is subordinate to O. 34, R. 1, was not necessary for the determination of the suit and, in my opinion, this dictum is not justified upon a reference to the wording of those rules.

6. [O. 34, R. 1 was here quoted and the judgment proceeded as follows.]

7. The explanation appended to the rule provides that a puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgagee. It is to be observed that the rule just quoted is subject to the provisions of the Code, and O. 1, R. 9, of the Code provides that "No suit shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."

8. The Court also has power under R. 10 of the same Order to add parties subject to the provisions of the Limitation Act. It would hardly seem accurate therefore to describe the provisions of O. 1, R. 9, as being subject to O. 34, R. 1. On the contrary, O.34, R. 1, is expressly declared to be subject to the provisions of the Code of which O.1, R. 9, forms a part. It seems to me that the combined effect of these rules in so far as mortgages are concerned is that all persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties but that failure to add one or more such persons should not have the effect of defeating the suit if the Court in their absence can deal with the matters in controversy, so far as regards the rights and interests of the parties actually before it.

9. Whether the Court can do so or not must depend upon whether the presence of those not added is essential to enable the Court to adjudicate on the rights and interests of those actually before it. It is a fundamental rule of procedure that the Court cannot, by its decree, affect the rights of those who are not parties to the suit. If therefore no decree can be passed without affecting the rights of absent parties, the suit cannot proceed in their absence and should be dismissed.

10. If, however, the rights of the parties actually before it can be determined in the suit leaving the rights and interests of others unaffected, I can see no reason why, even if other parties might properly have been added, the Court should not determine the matters in controversy between the parties actually present.

11. The opinion which has sometimes been expressed that the provisions of O.1, R. 9, are subject to O. 34, R. 1, has no doubt been to some extent induced by the fact that the proviso relating to notice in the repealed S. 85 of the Transfer of Property Act has not been re-enacted in O. 34, R. 1, of the Code of 1908 which now supersedes S. 85 of the earlier Act. The proviso appears to have created an impression, which in some cases has been given effect to, that where a plaintiff had no notice of the interest of puisne mortgagees or others interested in the mortgaged property and has not joined them they might nevertheless be bound by a decree obtained against the mortgagor in their absence.

12. To obviate the possibility of such an error the words of the old section have not been re-enacted as, presumably, they were considered unnecessary. This does not, however, in my opinion, lead to the conclusion that a suit is necessarily bad if certain persons who ought to be joined in order to enable the Court to dispose of all questions affecting the rights of the persons interested in the property are not joined.

13. Whether a person is a necessary party to the suit in the sense that it cannot proceed in his absence must depend upon whether the decision would necessarily affect the interests of that party. An instance of such a case arises under S. 45 of the Contract Act where the interests of joint promisees are involved. In that case a claim cannot be enforced by one alone of the promisees, all of whom are jointly interested.

14. So also in the case of joint mortgagees one alone cannot ordinarily maintain a suit on the mortgage which is one and indivisible. The suit must be brought to enforce the mortgage as a whole or not at all. It cannot, be enforced piecemeal. The whole interest must therefore be represented as the Court cannot, by its decree, bind those who are not parties. Similarly a suit to recover property against co-sharers all of whom are jointly interested cannot proceed in the absence of one or more of them. This principle is of course subject to the rule that a person may, in certain cases, sue, or be sued, in a representative capacity. But if a decree can be passed and given effect to in so far as the rights of the parties actually before the Court are concerned without interfering with the interests of others there seems to me no reason why the suit should not proceed. The difference between those who may be proper parties to the suit and therefore properly impleaded, and those who are necessary parties without whom the suit cannot proceed is pointed out by Mookerjee, J., in Jogendra Nath Singh v. Secretary of State (1912) 16 C.L.J. 385=17 I.C. 921= 17 C. W. N. 835 where that learned Judge lays down that, two conditions must be satisfied in order that a defendant may be considered a necessary party, namely, first, there must be a right to some relief against him in respect of the matter involved in the suit, and, secondly, his presence is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

15. In Pomeroy on Remedies, Sec. 330, it is said: "Necessary parties, defendants, are those without whom no decree at all can be rendered: proper parties, defendants, are those whose presence renders the decree more effectual: and all the proper parties are those by whose presence the decree becomes a complete determination of all the questions which can arise and of all the rights which are connected with the subject-matter of the controversy." From this it may be deduced that a necessary party is a proper party but a proper party is not always a necessary party. That the puisne mortgagee in the present case is a proper party, there can be no question, as his rights might be determined in the suit. But can it be said that his presence is necessary to enable the Court to adjudicate between the parties actually before it I think not.

16. That decrees have frequently been passed in a suit for sale between the prior mortgagee and the mortgagor in the absence of a puisne encumbrancer cannot be disputed. The reports abound with such cases. The decree, however, in such a case, cannot affect the interest of the puisne mortgagee who is not a party, and if the decretal amount should remain unpaid and the sale take place in execution of the decree of the prior mortgagee the property would be sold subject to the rights of the puisne encumbrancer who would be in no worse position after the sale than he was before it. If not redeemed he can himself redeem the prior encumbrance and bring the property to sale to secure payment of his own and the prior mortgage or he can sue for a sale of the property subject to the prior mortgage.

17. It is true that the Allahabad High Court, for reasons which have not commended themselves to any other High Court in India, have held that a puisne mortgagee who did not elect to redeem a prior encumbrance although he was not a party to the suit instituted by the prior encumbrancer had no right to sell the property subject to the prior encumbrance. See Matadin Kasodhan v. Kazim Hussain (1891) 13 All. 432 (F.B.) and in that and subsequent cases they have held that the prior mortgagee was bound to make a puisne mortgagee a party to a suit for sale upon the prior mortgage.

18. I am unable to follow the decision of the majority of the Full Bench in Matadin's case (1891) 13 All. 432 (F.B.) which conflicts with the views of other High Courts and apparently with the dictum of the Privy Council in Umesh Chander Sircar v. Zahur Fatima (1890) 18 Cal. 164=17 I. A. 201=5 Sar. 507 (P.C.). If therefore the puisne encumbrancer's position is rendered no worse by a decree in his absence at the suit of the prior mortgagee, I can see no reason why the Court should not be competent to try a suit and determine the issues in dispute between the parties actually before it merely because of the absence of a party who would be in no way prejudiced thereby.

19. In my opinion the appeal should be allowed, the decree of the learned District Judge affirming that of the trial Court, in so far as it dismisses the suit against the defendants, first party, should be set aside and the case remanded to the trial Court to be determined on the merits. The suit as against the puisne mortgagee, (defendant, second party) is dismissed without costs. The appellant is entitled to the costs of this appeal and in both the lower Courts against the defendants first party.

20. As the case has been remanded after setting aside the decision of the Court below on a preliminary point under O. 41, R. 23 the appellant is entitled to a certificate authorising him to receive back from the Collector the full amount of the Court-fee paid by him on the Memorandum of appeal in this Court and on the Memorandum of appeal in this Court below.

21. B.K. Mullick, J.

22. I agree.