Chatterji, J.:— This is an appeal by the plaintiffs in a suit to enforce a simple mortgage dated the 4th May, 1931.
2. The mortgage in question was executed by the predecessor of defendants 1 and 2 (defendants first party) in favour of Bechan, deceased father of defendants 8 and 9 (defendants fourth party), for Rs. 175/- repayable by the 15th of Baisakh, 1339 Fasli (April-May 1932) with interest at 2 per cent, per mensem. The plaintiffs are the transferees of the entire mortgaged interest from Bechan's sons defendants 8 and 9 under a ‘bechinama’ dated the 26th October, 1943. It is, however, now conceded that the mortgage, though executed in favour of Bechan alone, was taken by him on behalf of the joint family consisting of himself and his brother Birju. Defendants 3 to 6 (defendants second party) and defendant No. 7 (defendants third party) are subsequent transferees of portions of the mortgaged property. The suit was instituted on the 4th February, 1944, claiming Rs. 350/-, that is, Rs. 175 as principal and Rs. 175/- as interest; the remaining interest due was given up in view of the provisions of the Bihar Money Lenders Act. The suit was contested by defendant No. 3 alone (who will be referred to hereinafter as the defendant). His defence, so far as material to this appeal, was that by a partition between the mortgagee Bechan and his brother Birju, a half share in the mortgage bond in suit was allotted to Birju, since deceased, and therefore his son Jadu was a necessary party. The plaintiffs accordingly amended their plaint and impleaded Jadu as defendant No. 10 on the 19th December, 1944, by which date the period of limitation had expired. Thereupon the defendant took the further plea that the suit was barred by limitation.
3. The learned Munsif who tried the suit held that Jadu was not a necessary party and the suit was not barred by limitation. He accordingly decreed the suit for the entire amount. It is difficult to understand how he passed the decree for the entire amount although, on the defendant's own case, the plaintiffs acquired only a half share in the mortgage money.
4. On appeal by the defendant, the learned Subordinate Judge held that Jadu was a necessary party, and he not having been impleaded within the period of limitation, the suit was barred by time. He accordingly allowed the appeal and dismissed the suit. Hence this second appeal by the plaintiffs.
5. It is argued by Mr. Harnarain Prasad on behalf of the appellants that admittedly there being a partition between Bechan and Jadu's father Birju by which each got a half share in the mortgage money, Jadu was not a necessary party and, therefore, the suit could not be dismissed on the ground of limitation. Mr. Haranarain Prasad concedes that the plaintiffs are not entitled to more than a half share in the mortgage money, that being the share allotted to the plaintiffs' vendors' father Bechan on partition.
6. The learned Munsif held that the suit is barred by limitation, relying upon a decision of this Court ‘Girwar Narain v. Mt. Makbulunnissa’, 1 PAT LJ 468. There it was held that O. 1, R. 9 of the CPC is subordinate to O. 34, R. 1; and a mortgage being indivisible, if all the parties entitled to a share in the money due on the mortgage are not upon the record the suit must be dismissed in its entirety. In that case one of the persons interested in the mortgage security was impleaded after the expiry of the period of limitation and, therefore, the suit was dismissed on the ground of limitation. This decision was considered in ‘Sital Prasad Ray v. Asho Singh*’, 2 Pat 175. In that case Sir Dawson Miller, C.J, who delivered the judgment with which Mullick, J. agreed, held that the combined effect of O. 1, R. 9, and O. 34, R. 1 of the CPC, 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. It was further held that if the rights of the parties actually before the Court can be determined in the suit, leaving the rights and interests of others unaffected, then, even though the other parties might properly have been added, the Court should determine the matters in controversy between the parties actually present. This decision has been consistently followed by this Court in later cases, ‘Musammat Waleyatunniasa Begam v. Musammat Chalakhi*’, 10 Pat 341, ‘Muhammad Yunus v. Champamani Bibi’, 18 Pat 141 and ‘Ramcharitar Sao v. Bawan Prasad’, AIR (33) 1946 Pat 225. In the last-mentioned case, upon a review of all the relevant decisions on the point, it was held that in order to decide whether a suit can proceed in the absence of certain proper parties, two tests have been laid down:
“(1) Can the rights of the parties on the record be fully determined in their absence; and (2) can that determination be made necessarily affecting the rights of those absent.”
7. It may be observed that in ‘Musammat Waleyatunniasa Begam v. Musammat Chalakhi*’, 10 Pat 341 it was pointed out that the proposition laid down in ‘Girwar Narain v. Mt. Makbulunnissa’, 1 Pat LJ 468 was too broadly stated.
8. In the light of the aforesaid later decisions, let us now consider whether Jadu was a necessary party. Admittedly there was a partition between Bechan and Jadu's father Birju by which each of them got a half share in the mortgage money. In fact, this defence was taken by the defendant himself and he proved the partition deed. It is, therefore, clear that as between the plaintiffs on the one hand and the mortgagor defendants, including their transferees, on the other, the matter actually in controversy is whether the plaintiffs are entitled to recover a half share in the mortgage money. This question can be fully determined in this suit in the absence of Jadu and without affecting his interest. It is faintly suggested by Mr. Girijanandan Prasad, on behalf of the respondents, that the mortgagors might be exposed to a fresh suit by Jadu. But, in the circumstances of the present case, that contingency can never arise. In the first place, the claim of Jadu, if any, on the basis of the mortgage, is barred by limitation. In the second place, Jadu himself filed a written statement admitting that he had received his share of the money.
9. In my view Jadu was not at all a necessary party. The suit, therefore, cannot be held to be barred by limitation.
10. The plaintiffs are entitled to a half share in the mortgage money, that is to say, Rs. 87/8/- as principal together with Rs. 87/8/- as interest up to the date of the institution of the suit, total Rs. 175/-.
11. Then remains the question of interest ‘pendente lite’ and interest subsequent to the date fixed for redemption. O. 34, R. 11 of the CPC, which governs the matter, provides:
“11. In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:
(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage
(i) On the principal amount found or declared due on the mortgage, — at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable………
(b) subsequent interest up to the date of realization or actual payment at such rate as the Court deems reasonable……….”
12. The word “may” suggests that it is discretionary with the Court to order payment of interest under this rule. But if the Court does order payment of interest, the interest on the principal till the date fixed for redemption will be payable at the rate fixed, or, where no such rate is fixed, at such rate as the Court deems reasonable. In ‘Jagannath Prosad v. Surajmal’, 54 Ind App 1 (PC) and ‘Kusum Kumari v. Debi Prasad’, 63 Ind App 114 (PC) their Lordships of the Privy Council pointed out that payment of interest from the date of the suit till the date fixed for redemption is in the domain of contract, while the interest payable subsequent to the date fixed for redemption is in the domain of judgment. The first of these cases — the second is not exactly in point — was considered by the Federal Court in ‘Jaigobind v. Lachmi Narain Ram’, AIR (27) 1940 FC 20, and their Lordships of the Federal Court pointed out that Order 34, rule 11 of the CPC, which was inserted by the Amending Act of 1929, gives a discretion to the Court. In exercise of this discretion, the Court may allow or refuse ‘pendente lite’ interest. If, however, the Court does allow interest, it seems to me that under Cl. (a)(i) of the rule the interest at the contractual rate, if any, should be given. But this does not mean that where the Court considers that the contractual rate is unconscionable or excessive, it is still bound to allow interest at that excessive rate. Where the Court, in the circumstances of the case, is of opinion that the interest is excessive, the contract must be deemed to be unenforceable, and it is in the discretion of the Court to allow such interest as it thinks proper. It is apparently in this view that the Federal Court in the said decision as also in ‘Subhanand v. Apurba Krishna’, AIR (27) 1940 FC 7, did not allow the contractual rate of interest from the date of the suit till the date fixed for redemption. Following the said Federal Court decisions this Court in ‘Madho Prasad v. Mujkutdhari Singh’, 22 Pat LT 317, and ‘Surendra Nath v. Digambar’, AIR (37) 1950 Pat 391, allowed reduced rate of interest on the ground that the contractual rate was unconscionable or excessive. In the present case, in our view 24 per cent, per annum is excessive and this contractual rate cannot be allowed. Keeping in view the provisions of the Bihar Money Lenders Act, we think 9 per cent, per annum simple interest may be allowed. It should be made clear that interest on the principal sum of Rs. 87/8/-, calculated at 9 per cent, per annum from the date of the bond to the date of the suit, exceeds Rs. 87/8/- and, therefore, the plaintiffs are entitled to Rs. 175/- as principal and interest up to the date of the suit.
13. As regards interest subsequent to the period of redemption, it will be allowed at 6 per cent, per annum on the total decretal amount.
14. I would accordingly allow the appeal and pass a preliminary decree in favour of the plaintiffs for Rs. 170/- till the date of institution of the suit with interest on the principal sum of Rs. 87/8/- at 9 per cent, per annum from the date of the institution of the suit till the expiry of two months from today, which I would fix as the period of redemption. The total decretal amount including costs will carry interest at 6 per cent, per annum from the date of the expiry of the period of redemption until realisation. The plaintiffs will be entitled to proportionate costs in the trial Court. As regards the costs of the lower appellate Court and of this Court, I would make no order, success being equally divided. Let a preliminary decree for sale be drawn up in the above terms.
15. Lakshmikanta Jha, C.J:— I agree.
R.G.D
16. Appeal allowed.