The Judgment of the Court was as follows:—
Mallik, J.:— This appeal arises out of a suit for recovery of money on a mortgage bond. Both the Courts below decreed the suit in full. Defendants Nos. 2, 4 ka, 4 kha, 4 gha, 4 uma have appealed to this Court.
There were two points taken before us on behalf of the Appellants. First of all, it was said that the decree was not sustainable inasmuch as the mortgage bond had not been proved in accordance with law. It appears that at the time of the trial of the suit three of the attesting witnesses were alive and it appears also that the Plaintiff called one of these three witnesses and when this witness resiled the Plaintiff proceeded to prove the document by other evidence. It was contended before us that as there were other attesting witnesses alive at the time it was incumbent on the Plaintiff to try them before he was allowed to prove execution of the document by other evidence. I do not think there is much substance in the contention. As observed before the Plaintiff did actually call one of the attesting witnesses then alive and it was only when that attesting witness resiled that the Plaintiff proceeded to prove the document by other evidence. This, in my opinion, was a full compliance with the provisions of secs. 68 and 71 of the Indian Evidence Act. The first contention raised before us must therefore fail.
The second point that was taken on behalf of the Appellants has more substance in it. It was said that the suit ought to have been dismissed as against Defendants Nos. 4 ka, 4 kha, 4 gha and 4 uma (who were subsequent transferees) inasmuch as they were brought on the record after the period of limitation of 12 years was over. This contention seems to me to be sound and must prevail. Under sec. 22 of the Indian Limitation Act when a party is added after the institution of a suit the suit shall, as regards him, be deemed to have been instituted when he was so made a party. It appears that the Defendants Nos. 4 ka, 4 kha, 4 gha and 4 uma were brought on the record and made Defendants in the case after the Defendant No. 2 had filed his written statement and this was admittedly more than 12 years after the money had become due and after the statutory period of limitation of 12 years. A considerable amount of argument was advanced on behalf of the Respondent to show that sec. 22 of the Indian Limitation Act could not apply to a case like the present one and a number of cases among which I may mention the cases of Mahamed Ishaq v. Sheikh Akramal Huq , Joggeswar Dutt v. Bhuban Mohun Mitra and Imdad Ahmad v. Pateshri Partap Narain Singh were cited before us. But the point that has been decided in all those cases is that when a person who is a necessary party to a suit is brought on the record after the period of limitation the whole suit must fail. These cases, however, are no authority for the proposition that when a party who is not a necessary party is brought on the record after the period of limitation, no part of the suit—not even the part as regards the party who is brought on record after the period of limitation can fail. On the other hand the case of Mathewson v. Ram Kanai Singh Deb is a clear authority against the point contended for on behalf of the Respondent. In this case it has been laid down that sec. 22 of the Limitation Act does apply to a case even where a person is not a necessary party but only a proper party to a suit and such a person cannot be added as a party after the expiry of the period of limitation as provided for by that section. On the authority of this case I am of opinion that sec. 22 of the Indian Limitation Act must be held to apply to the present case and if sec. 22 of the Indian Limitation Act does apply to the present case there can be no getting over the difficulty about limitation so far as Defendants Nos. 4 ka, 4 kha, 4 gha and 4 Uma are concerned without involving the aid of some of the saving sections of the Indian Limitation Act. An attempt has been made by the Respondent to show that the limitation in the present case as against these. Defendants was saved by the provisions of sec. 18 of the Limitation Act. It was urged that the Plaintiff came to know of the existence of the subsequent transfers in favour of these Defendants only after the written statement of Defendant No. 2 had been filed and these Defendants were brought on the record within a short time after the Plaintiff came to know of those transferees. It may be that the Plaintiff had come to know of those transferees only a short time before these Defendants were parties to the suit. But that alone will not do for bringing in the aid of the provisions of sec. 18 of the Act. Before the Plaintiff could avail himself of the provisions of that section it was incumbent upon him to show that he had been kept out of that knowledge by means of fraud. But in the present case there was no allegation of any fraud of any kind, much less any evidence to substantiate such fraud. Sec. 18 of the Indian Limitation Act could not, therefore, in my judgment, be of any help to the Plaintiff and holding as I do that sec. 22 applies to the case the suit as against Defendants Nos. 4 ka, 4 kha, 4 gha and 4 uma must be held to have been barred by limitation.
The result, therefore, is that the appeal is allowed in part. The decree of the Lower Court as against Defendants Nos. 4 ka, 4 kha, 4 gha and 4 uma is set aside and the suit as against them will stand dismissed. The rest of the decree of the lower Court will remain intact. Defendants Nos. 4 ka, 4 kha, 4 gha and 4 uma will get their costs from the Plaintiff throughout. The Plaintiff-Respondent will get from Defendant No. 2 his costs of this appeal.
Cuming, J.:— I agree.
H.C.S
Appeal partly allowed.