Judgment : 1. The plaintiff/appellant filed the suit in O.S.No.882 of 1989 on the file of the learned II Additional District Munsif, Tiruchirapalli praying for a decree for permanent injunction restraining the first defendant/first respondent-bank from interfering with the enjoyment of the suit property. 2. The first defendant/first respondent-bank filed a suit in O.S.No.926 of 1978 to enforce the mortgage executed by the second defendant/second respondent. The said mortgage was executed on 24.5.1976. The said suit filed by the first respondent-bank was decreed and the second respondent went up to the High Court, aggrieved against the said decree, but failed in his attempt. It is relevant to mention here that the second respondent obtained a loan on 24.5.1976, by executing the said mortgage. At this stage, the appellant/plaintiff who is the son of the second respondent filed the present suit to stall the proceedings taken by the first respondent to executing the decree. The present suit was filed on the basis that a partition deed was entered into on 1.8.1977 and so without impleading him as a defendant in the mortgage suit, as he is the owner of the property, the first respondent cannot execute the same and it is unenforceable against the appellant. The lower court without accepting the case of the appellant/plaintiff, dismissed the present suit. The lower court found that the property in question is not the ancestral property and it is the absolute property of the second respondent/second defendant and so the appellant/plaintiff is not having any right of redemption in the property. Aggrieved against the said judgment and decree the plaintiff filed an appeal in A.S.No. 105 of 1996 on the file of the learned Principal Sub-Judge, Tiruchi. Even the lower appellate court concurred with the findings of the lower court dismissed the appeal. Aggrieved against the same the plaintiff/appellant has filed the above second appeal. 3. The only issue that arises for consideration in this second appeal is whether the decree obtained by the first respondent/first defendant in O.S.No.926 of 1978 would become unenforceable against the property in question, in view of the fact that the plaintiff was not impleaded as party-defendant in the said suit. 4. This issue arises only on the basis that under the partition deed dated 1.8.1977, the property in question was allotted to the plaintiff. 4. This issue arises only on the basis that under the partition deed dated 1.8.1977, the property in question was allotted to the plaintiff. Relying on O.34, Rule 1 of the Civil Procedure Code, the learned counsel appearing for the appellant has submitted that the persons having interest either in the mortgage property or in the right of redemption shall join as a party to any suit relating to mortgage. According to him, the plaintiff is having a right of redemption in view of the partition deed dated 1.8.1977, but he has not been impleaded in the said suit. So, the said decree cannot be enforced against the property in question. In support of his submission, the learned counsel has relied on the decisions in P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma A.I.R. 1971 A.P. 363 : (1971)2 An.W.R. 43, Veeraswamy v. Jangamayya A.I.R. 1970 A.P. 153, and in Bisweswar v. Jaineswar Bisweswar v. Jaineswar Bisweswar v. Jaineswar A.I.R. 1968 Cal. 213. 5. It is not in dispute that the second respondent mortgaged the property to the first respondent as early as on 25.5.1976. Since the amount was not paid the first respondent-bank filed the suit in O.S.No.926 of 1978 and obtained a decree. The second respondent went up to the High Court second appeal and failed in his attempt to set aside the said decree in the said suit. There is no material available on record to show that he defended the said suit stating that the property was given to the plaintiff herein and he has no right in the property, and, without impleading the plaintiff, the decree cannot be passed. For the first time, such a plea has been raised by the appellant, in the present suit. The specific finding of the lower appellate court is that even the encumbrance certificate filed in O.S.No.926 of 1978 does not disclose the said partition, though it is a registered one. In view of the abovesaid fact it cannot be said that the said partition was to the knowledge of the first respondent-bank. Though the plaintiff/appellant tried to set up a case that there was an oral partition in 1976 itself, he could not establish the same before the courts below. In view of the abovesaid fact it cannot be said that the said partition was to the knowledge of the first respondent-bank. Though the plaintiff/appellant tried to set up a case that there was an oral partition in 1976 itself, he could not establish the same before the courts below. The lower appellate court has found that in 1977, the plaintiff/appellant was 13 years old and in the partition deed nothing has been mentioned about the mortgage deed said to have been executed by the second defendant/second respondent in favour of the first defendant/first respondent-bank. It is also relevant to mention that the plaintiff/appellant has deposed in his evidence that even after the execution of Ex.A-1, till the date when he gave evidence, namely, in 1996, he was living with his father and he got married only in 1988. On the basis of the abovesaid fact, the lower appellate court has correctly come to the conclusion that the said partition Ex.A-1 was effected only to defraud the first respondent-bank especially when the same was not informed nor taken as a defence in the earlier suit, and so it will not bind the first respondent-bank. 6. The learned counsel appearing for the appellant relying on the decision in Bisweswar v. Jaineswar Bisweswar v. Jaineswar Bisweswar v. Jaineswar A.I.R. 1968 Cal. 213 has submitted that in a mortgage suit, without impleading a coparcener the decree obtained therein will not bind on the said coparcener. In the abovesaid decision, the Calcutta High Court has held as follows: “From what we have stated above, it is clear that the plaintiffs became co-sharers of the disputed properties, which remained with the family in spite of the mortgage, the mortgage being only a limited transfer or transfer of an interest in the same, from the moments of their respective births. The mortgage suit was, admittedly, instituted long after the births of the plaintiffs. The plaintiffs, therefore, had, at the date of the aforesaid mortgage suit, their rights of redemption, even though they could not question or challenge the mortgage and were bound by the same. Having this right of redemption, the plaintiffs were necessary parties to the above mortgage suit, and the decree, obtained in the said suit, and the sale, held in pursuance of the same, would not bind them so as to deprive them of their said right of redemption. Having this right of redemption, the plaintiffs were necessary parties to the above mortgage suit, and the decree, obtained in the said suit, and the sale, held in pursuance of the same, would not bind them so as to deprive them of their said right of redemption. If, therefore, they are willing to redeem the mortgagees interest by paying to him all his dues uptill the date of redemption in accordance with law, they should be permitted, in the circumstances of this case, to exercise that right, and, once it is done, the mortgagee would disappear from this suit and his interest in the mortgaged properties would be extinguished, and the instance suit for partition will then have to be adjudged on that footing.” As discussed above, with respect to the property in question, the trial court has held that it is not the ancestral property of the second defendant/second respondent and so the plaintiff/appellant cannot claim right as a co-parcener or coowner to the said property and the plaintiff/appellant claims right only under Ex.A-1 which came into existence even according to the plaintiff/appellant, after the execution of the mortgage. So, the abovesaid decision may not have any help to the plaintiff/appellant. 7. The learned counsel appearing for the appellant has further relied on the Full Bench decision of the Andhra Pradesh High Court, namely, P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma P.G.Reddy v. Golla Obulamma A.I.R. 1971 A.P. 363. In the said decision, while construing the scope of O.34, Rule 1 of the Civil Procedure Code, it is held as follows: “The provision is specific and mandatory. According to it in a suit for recovery of mortgage debt, all the persons interested in the mortgage security must necessarily be made parties to the suit either as plaintiffs or defendants. Ordinarily they should be plaintiffs but if any of them does not wish to be in the array of the plaintiff, there will be due compliance with the provision if he is made defendant to the suit.” 8. Ordinarily they should be plaintiffs but if any of them does not wish to be in the array of the plaintiff, there will be due compliance with the provision if he is made defendant to the suit.” 8. The learned counsel appearing for the appellant has further relied on the decision of the Andhra Pradesh High Court, namely, Veeraswamy v. Jangamayya A.I.R. 1970 A.P. 153 wherein the learned Judge, while construing the scope of O.34, Rule 1 and O.1, Rule 10 of the C.P.C., has held as follows: “To appreciate the respective contentions advanced by the counsel, it is profitable to consider the provisions of O.34, Rule 1, Civil Procedure Code which reads thus: ‘Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage’ It is true, as contended by Sri Babu, that the object of this rule is to make all persons having an interest in the mortgage-security or in the right of redemption join as parties with a view to avoid multiplicity of suits. It is also true that the defendants 5 to 8 who are sought to be impleaded as party-defendants by the plaintiff in the suit for the redemption, are not claiming any right through the mortgagee or mortgagor but claiming independent title through the 2nd defendant. The provisions of O.34, Rule 1, Civil Procedure Code are subject to the provisions of the Code as disclosed from the opening words of the rule. O.1, Rule 2, Clause (2), Civil Procedure Code empowers the court to add the name of any person who ought to have been joined as defendant and whose presence before the court would be necessary in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the suit. Even on the admitted facts, it cannot be said that the defendants 5 to 8 are not interested in some of the mortgaged properties which according to them were in their possession on the date of suit, though they claimed to have got possession of the properties through the 2nd defendant, who is setting up an independent paramount title by adverse possession. Further, in case the plaintiff succeeds in getting a decree in the suit for redemption in respect of the suit properties, some of them being alleged or claimed to be in the possession of defendants 5 to 8, he will not be able to reap the fruits of the decree, until and unless they (defendants 5 to 8) are made parties to the suit. I am unable to agree with the contention of Sri C.N.Babu that the provisions of O.1, Rule 10, Civil Procedure Code are controlled by O.1, Rules 1 and 3. As far as O.1, Rule 1 is concerned, I must say that it has no application to the facts of the present case, as the same relates to the persons who may be joined in one suit as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist. Even Rule 3 of O.1 which authorises all persons against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, whether jointly or severally, to join as defendants, cannot be said to control the provisions of O.1Rule 10, Clause (2), Civil Procedure Code. The argument of Sri Babu is that as no-relief against the defendants 5 to 8 relating to redemption of mortgage is sought for, they cannot be added in the same suit as party defendants. As observed by B.P.Sinha, J., (as he then was) in Razia Begum v. Sahebzadi Anwar Begum Razia Begum v. Sahebzadi Anwar Begum Razia Begum v. Sahebzadi Anwar Begum A.I.R. 1958 S.C. 886(895) ‘In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of litigation.‘ Admittedly, in the present case, the defendants 5 to 8 are directly interested in Items 7 to 9 of the plaint schedule claiming as alienees from the 2nd defendant who has set up an independent title by adverse possession. The plea of the plaintiff that the 2nd defendant, who is setting up an adverse title, has colluded with the 1st defendant, who remained ex parteand hence, the mortgagee is deemed in law to be in possession of the mortgaged properties, is material and relevant to determine the point at issue, whether defendants 5 to 8 are necessary or proper parties to the present suit. If on enquiry by the court this point is found in favour of the plaintiff, the plaintiff must be able to get at the properties, pursuant to the decree and he will not be in a position to successfully execute the decree and get possession of the mortgaged properties, unless he makes the defendants 5 to 8 as party defendants who claimed to be in possession of those items.” There cannot be any dispute about the abovesaid proposition of law. In the present case, we have to appreciate whether the plaintiff/appellant was a necessary party to the said suit and the first respondent will get any right to enforce the said decree without impleading the plaintiff/appellant as a party to the said suit. In similar circumstances, the Division Bench of this Court while construing the scope of Sec.85 of the Transfer of Property Act, (which was separated by Civil Procedure Code) in Ramasamayyan v. Virasami Ayyar I.L.R. 21 Mad. 222 : 8 MLJ. 125. hasheld as follows: “The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such sale by intervention of a suit. It is not necessary that the son shall be called in whether the sale is voluntary or procured by a proceeding in Invitum, and there is no object in joining him except to preclude him from afterwards questioning the nature of the debt. According to the decision in Bhawani Prasad v. Kallu Bhawani Prasad v. Kallu Bhawani Prasad v. Kallu I.L.R. 17 All. According to the decision in Bhawani Prasad v. Kallu Bhawani Prasad v. Kallu Bhawani Prasad v. Kallu I.L.R. 17 All. 537, a distinction must be made between a voluntary and an enforced sale, when such sale is the consequence of a mortgage suit; and in this latter case it must be held that no interest passes except that of those who are made parties to the suit, and this distinction is insisted upon because the Legislature has enacted as a written rule of law what was previously a wellrecognised rule of procedure. Having regard to the theory above stated I cannot think that this effect should be given to the section. The section is certainly imperative in its terms. Expressed in any other mood it would be vain. But a sanction is not wanting; for inconvenient consequences may follow on a neglect of the law. The mortgagee who omits to join persons interested in the property may have his suit dismissed or, if he obtains a decree, may find notwithstanding that he has to institute or defend another suit. Nevertheless as against the Hindu father the decree which is passed in the absence of his sons is a good and valid decree.” The abovesaid decision of the Division Bench of this Court has been followed in the decision in Tariya Gowdu v. Vonamo Gowdu Tariya Gowdu v. Vonamo Gowdu Tariya Gowdu v. Vonamo Gowdu I.L.R. 22 Mad. 204. In the said decision, it is held that a decree obtained against a Hindu father without making the sons brought on record on the mortgage made by the father will bind on them also. 9. Further, while dealing with similar issue, another Division Bench of this Court, in the decision in Chidambara Mudaliar v. Koothaperumal I.L.R. 27 Mad. 326 : 14 MLJ. 181 has held as follows: “On principle it is difficult to make any distinction between a mortgage given for an antecedent debt and a mortgage given for a debt then incurred, for in either case the debt is binding upon the son, and the enforcement of the security exonerates the son from the burden of the fathers debt. 181 has held as follows: “On principle it is difficult to make any distinction between a mortgage given for an antecedent debt and a mortgage given for a debt then incurred, for in either case the debt is binding upon the son, and the enforcement of the security exonerates the son from the burden of the fathers debt. Such a distinction does not really afford any protection to the son, for his share in the mortgage property can, as a general rule, be seized and brought to sale, even in the latter case, for the recovery of the debt as a person debt due by the father (though) also secured by a mortgage), unless such share has been validly alienated in favour of a third party, since the date of mortgage but prior to its attachment.” 10. The object of O.34, Rule 1 of Civil Procedure Code requiring all persons having an interest either in the mortgage or in the right of redemption to be joined as parties is to avoid multiplicity of suits. The said Rule is merely procedural and does not create substantive rights. 11. In view of the above decisions of this Court, the case of the plaintiff cannot be sustained especially at the time of executing the mortgage deed, there was no partition and the appellant was a minor and even in the suit filed by the first respondent/first defendant Bank, the second respondent who is the second defendant, who is the father of the plaintiff/ appellant has not taken any defence saying that the property in question was allotted to the plaintiff/appellant herein under a partition deed. As stated earlier, no objection was raised by him to the effect that the proper parties are in existence and they have to be impleaded. The encumbrance certificate also did not disclose the said partition. The first respondent/first defendant has got a decree against the property in question and it was properly represented by the second respondent/second defendant, and, against that property now the first respondent wants to proceed against. 12. In view of the above discussions, the courts below are correct in rejecting the case of the plaintiff and dismissing the suit. Hence, this second appeal deserves to be dismissed, and accordingly the same stands dismissed. No costs. Consequently, C.M.P.No.8684 of 1998 is also dismissed.