This appeal is against the order of the District Judge of West Tanjore declining to make the appellants parties to O. S. No. 3 of 1919, on the file of the Court. The appellants applied to the lower Court to be made parties to the suit on the ground, that they were mortgagees of the interest of Pratapa Simha Rajah, the 2nd defendant in O.S No. 3 of 1919. The contention of the appellants is that they have got a mortgage of the interest of the 2nd defendant in the suit and that they are therefore entitled to be made parties to the suit. The learned Judge has considered the petition on the merits and has declined to make them parties. The petitioners have taken a mortgage of the share of the 2nd defendant for Rs. 1,70,000. The suit was decreed sometime ago and the appeal against the decree of the Subordinate Judge was disposed of by this Court in 1923. Pursuant to the decree of the High Court, the properties in suit are being divided and a sum of about Rs. 70,000 is said to be in deposit in the District Court to the credit of the suit. The objection of the -2nd defendant to the petitioners being brought on record is that the transaction evidenced by the mortgage is an usurious transaction and that out of Rs. 1,70,000, not even Rs. 50,000 was spent on behalf of him. The answer of the appellants is that at least Rs. 50,000 is admitted to have been received by the 2nd defendant and therefore, so far as that amount is concerned, the appellants are entitled to be paid by the 2nd defendant. It is unnecessary to consider this question in a matter like this. The suit was disposed of some time ago and the application is made under O. 22, R. 10 of the Civil Procedure Code. That rule applies only to pending suits whereby a person who derives title from a party will be entitled to be brought on record, if it is shown that he has secured a good title from a party and that it is to his interest to be brought on record in the suit. In this case, the suit has come to a termination and a decree has been passed. The object of the appellants is to secure the amount in Court in part discharge of the mortgage amount.
The contention of Mr. Alladi Krishnaswami Aiyar is that he being a mortgagee of immoveable property is entitled to be paid the amount in Court. No doubt, in cases of ordinary mortgage of a fund or sum of money, the mortgagee would be entitled to be paid out of the amount but where the claim is resisted on the ground that the transaction is an usurious transaction and the consideration recited in the mortgage document did not actually pass, we do not think the Court will be justified in making a person a party to the suit and thereby, prevent the person from whom he derived title, from disputing his right to receive the amount. By making the appellants parties to the suit, very serious complications will arise. They can have their remedy by bringing, suit against the 2nd defendant. It would not be right, ot this stage, to make the appellants parties to the suit and thereby, prevent the 2nd defendant from putting forward any defence he may have to the claim of the appellants. In this connection, we may refer to a recent judgment of the Privy Council reported in Mst. Lajwanti v. Safa Chand(1) where their Lordships observe:—
“It is out of the question that persons, who assert that they have a derivative interest, in the stake of a suit, can by getting added as plaintiffs, be associated in a decree, in favour of the person who has the only real title.”
In this case, there has been no devolution of interest in the sense that all the interest of the 2nd defendant has come to the appellants. The appellants have only a mortgage interest and they have to enforce the mort gage right in the ordinary course. We think the order of the learned Judge is correct and we dismiss the appeal with costs.
C. K.Appeal dismissed.