JUDGMENT Harry Griffin and Chamier, JJ.
1. This was a suit on a mortgage made in favour of the first plaintiff in January, 1891. Some of the defendants were the mortgagors and the remainder were impleaded on the ground that they had acquired interest in the mortgaged property by purchase. One of the defences to the suit was that the plaintiffs had failed to implead four persons who had acquired one-sixth of the mortgaged property after the mortgage. The first court gave the plaintiffs a decree for 5/6ths of the amount due on the mortgage, to be recovered, if necessary, by sale of 5/6ths of the property mortgaged. The defendant appealed. The District Judge held that the non-joinder of the owners of one-sixth of the property was fatal to the suit, which he accordingly dismissed. In second appeal it is contended that the decision of the lower appellate court was erroneous. Reliance is placed on the decision in Imam Ali v. Baij Nath Ram Sahu (1906) I.L.R., 33 Calc., 613 and some observations made by one of us in Gendan Lal v. Babu Ram (1911) 9 A.L.J., 86. For the defendants respondents it is contended that a mortgagee must sue for recovery of the whole of the mortgage money by sale of the whole of the mortgaged property, and that if for any reason he is unable to ask for the sale of the whole mortgaged property his suit should be dismissed. In the present case the plaintiffs sued for recovery of the whole of mortgage money by sale of the whole of the mortgaged property. But by an oversight they omitted to implead certain persons who owned a share in the property distinct from the shares held by the other defendants. It seems to us that if the other questions in the case are decided in favour of the plaintiffs, so much of the claim should be decreed as is proportionate to the interest of the persons who are before the court. There seems to be some question as to whether the defendants are the owners of 5/6th or a smaller share. This matter may be determined by the lower appellate court. We allow the appeal, set aside the decree of the lower appellate court, and remand the case to that court to be restored to the pending file and disposed of according to law. Costs will be costs in the cause.