Jwala Prasad, J.@mdash[20-6-1923] A compromise petition has been filed in this case by the appellants, who were defendants Nos. 2 and 6 in the Court below, and the respondents Nos. 1, 2 and 7. The respondent No. 1 was the plaintiff in the Court below. The respondent No. 2 was defendant No. 1 and respondent No. 7 was defendant No. 8 in the Court below. They are major. Other respondents have not joined in the compromise, hence the appeal will be dismissed so far as those respondents are concerned. There will be no costs in the case of those respondents who have not entered appearance and costs will be allowed to those respondents who have entered appearance. Costs, if any to the Deputy Registrar will be taken into account in the preparation of the decree.
2. An application in this case has been made by one Azhar Hossain, a minor, and one Zahir Hyder (major), who want to be made parties to this litigation. Zahir Hyder has himself subscribed and has sworn to the compromise petition and has appeared through Mr. Saroshi Charan Mitter, Vakil. The said Azhar Hossain is represented by one Nurul Hossain who has signed the coupon and for him Mr. Bhagwati Kumar Sinha, Vakil, appears. Zahir Hyder wants to be made a party on the allegation that he is the heneficiary of the mortgage bond executed subsequent to the mortgage in question by one of the mortgagors, Nasiruddin Hyder. It stands in the name of Naziruddin Ahmad respondent No. 7 defendant No. 8. Syed Anzar Hussain, minor, wants to be made a party on the allegation that the mokarrari deed executed in his favour by appellant No. 1 subsequent to the mortgage bond was a mere benami, fictitious and colourable transaction and that he has no interest in the said mokarrari. He was not impleaded. In the suit in the Court below and it is stated that the plaintiff, respondent No 1, did not know of the aforesaid mokarrari having been executed in his name. In the compromise petition it is stated that the mokarrari was a fictitious document and has created no interest at all in the properties in favour of Anzar Hussain, minor. If he has no interest in the properties he is not a necessary party to the litigation and therefore, Order 1 rule 10 does not apply under which he could be made a party only when the Court was satisfied that his presence was necessary in order to enable effectually and completely to take up and settle all the questions involved in the suit. Admittedly the mokarrari came into existence subsequent to the mortgage bond in suit, and whether fictitious or real, it is subject to the mortgage of respondent No. 1. Therefore, so far as the action based upon the mortgage is concerned the question as to whether Syed Anzar Hussain is a mere farzidar or has real interest as mokarraridar in the properties by virtue of the document in question does not arise. That is a question between the defendants, the executants of the bond and Syed Anzar Hussain. He could only be made a party in the suit if he had any interest in the mortgage properties which he disclaims altogether in the compromise petition filed in the case. Therefore, he need not be made a party in this litigation and consequently it is not necessary to decide whether the compromise is for his benefit or not.
3. The application of Syed Zahir Hyder, however, stands on a different footing. Nasiruddin is said to have executed a mortgage in favour of Sriram, respondent No. 8, and Baijnath, respondent No. 9, who were defendants Nos. 9 and 10 respectively in the Court below and that these two persons sold the mortgage interest to Naziruddin and that Naziruddin was only a farzidar for Zahir Hyder. Therefore, Zahir Hyder was a real person interested in the properties and was a necessary party to the litigation. His farzidars have been made parties and he now applies to be made a party and to be allowed to join in the compromise petition. His application is, therefore allowed and he is made a defendant-respondent in the case. Now, before the appeal is disposed of in terms of the compromise petition so far as the appellants Nos. 1 and 2, respondents Nos. 1, 2 and 7 and the newly added respondent Zahir Hyder are concerned, it is necessary to consider whether proper Court fee was paid on the plaint.
4. Order No. 11 of the Registrar shows that Rs. 845 is due from the plaintiff respondent No. 1 as deficit Court-fee payable by him on the plaint, and that the matter was left to be decided by the Bench at the time of the hearing of the appeal. The deficit was discovered when the question as to the sufficiency of the Court-fee payable on the memorandum of appeal was raised by the Stamp Reporter. The Taxing Officer, Mr. James, passed order on the 30th March, 1920, referring the matter to the Taxing Judge, because, in his opinion, the case was of importance and that cases of this nature generally come up for decision. He himself was of opinion that there was no deficiency and the Court-fee paid on the memorandum of appeal was sufficient. The suit was based upon two mortgage bonds both in favour of the plaintiff respondent No. 1, Shashi Bhusan Ray. One of them was executed on the 5th July, 1907, by Nawaba Hurmuzi Begam with her sons since deceased for Rs. 20,000. The second was executed on 1st February, 1908, by the same mortgagors in favour of the same creditor in which the same properties were mortgaged for a sum of Rs. 6,995. The due date for the payment of the mortgage loan was the same in both the mortgage bonds, namely, the 3rd July, 1909. The rate of interest in the first bond was Re. 1 per cent, per month compound interest with yearly rests. In the second bond the rate of interest was Rs. 1-4-0 per cent, per month compound interest with yearly rests. After reciting the necessity of the loan and the fact of a prior mortgage bond having been executed, the mortgagors of the second bond recite that they requested him (the plaintiff respondent), to quote the words of the bond :
to advance a further sum of Rs 6,995 bearing an interest of Rs. 1-4-0 per cent, per mensem stipulating to pay interest every year as per terms given in the said former bond on the mortgage of the aforesaid properties which are hypothecated in the former bond, by getting a registered bond executed.
5. The two mortgages were, however, not consolidated. The total amount claimed by the plaintiff was Rs. 1,04,993 on which the plaintiff paid Rs. 1,450 as Court-fee. The view of Mr. James was that the mortgagee was not entitled to realise the money due on the first mortgage until the second mortgage also became due. He could not sue on the second mortgage for the sale of the property subject to the first mortgage and, therefore, if he brought a suit on the first mortgage he was obliged to set up his second mortgage or he would lose his right to enforce the second mortgage, Nattu Krishnama Chariar v. Annangara Chariar [1907] 30 Mad. 353 - 2 M.L.T. 330 - 17 M.L.J. 301 Keshavram v. Ranchhod [1905] 30 Bom. 156 - 7 Bom. L.R. 811. Therefore, the mortgagee was bound to bring one action on both the bonds at one and the same time, and the cause of action having arisen on the same date Mr. James was of opinion that there was a single cause of action and one and the same subject-matter and, therefore, S. 17 of the Court-fees Act did not apply. Mr. Justice Courts, the Taxing Judge, on the other hand, was of opinion that the word "Subjects" used in S. 17 means "Causes of action" and therefore the question was whether the plaintiff''s suit embraces one cause of action or two distinct causes of action and therefore two distinct subjects. He was of opinion that there were two distinct causes of action based upon two mortgage bonds and therefore there were two distinct subjects and hence under S. 17 the court-fees payable on the sums due on the two mortgages must be separately levied. Mr. S.M. Mullick disputes the view taken by Mr. Justice Courts and says that the view taken by Mr. James was correct. In this he is supported by an unreported case of the Madras High Court Appeal No. 70 of 1902 and by the two decisions of the Oudh Judicial Commissioner''s Court, Thakur Jawahir Singh v. Balabant Singh [1904] 7 O.C. 152 and Jawahir Singh v. Baldeo Prasad [1908] 11 O.C. 173. The view taken by Mr. Justice Courts is supported by the He vision in the case of Parshotam Lall v. Lachman Das [1887] 9 All. 252 - (1887) A.W.N. 42. In that case the suit of the plaintiff was based upon three different Hundas executed on the same date and payable at the same time. The argument was that the three Hundis only made one cause of action. Sir John Edge, C.J., answered this argument thus:
It was admitted that the plaintiff might bring three separate actions on these Hundis and each Hundi would afford a separate cause of action. The suit embraces three separate and distinct subjects.
6. Accordingly he held that the memorandum of appeal was chargeable with the aggregate amount of court fees to which the memorandum of appeal in suits embracing separately each of such subjects would be liable under the Court Fees Act. It is urged that the present case is distinguishable from the aforesaid case inasmuch as the plaintiff in this case could not bring separate actions on the two mortgages. The question is of importance and, therefore, we direct that the learned Government Advocate be requested to appear on behalf of the Revenue.
7. If the decision of the case will be against the plaintiff his suit will be dismissed unless the court-fee is paid, under S. 12 of the Court Fees Act and, therefore, no decree can be passed in terms of the compromise at this stage.
8. The parties are directed to make their suggestions as to the remuneration of the Receiver in case the decree is made in terms of the compromise.
Final order [2-7-1923].
9. We have heard the learned Assistant Government Advocate and Mr. Mitra at great length and we have considered the authorities cited by them, namely, Subromania Aiyar v. Badasubramania Aiyar [1915] 38 Mad. 927 - 29 M.L.J. 195 - 30 I.C. 317 (F.B.), Nathu Krishnama Chariar v. Annanjara Chariar (supra) Keshavram v. Ranchhod (supra) Sundar Singh v. Bholu [1898] 20 All. 322 - (1898) A.W.N. 58 (F.B.)
10. The trend of the decisions in Madras, Allahabad and Calcutta seems to be that, a person holding two mortgages from the same mortgagor hypothecating the same properties and even when the due date in both is the same can bring suits separately on both bonds. In other words, there is nothing to prevent a mortgagee from suing on the first mortgage without joining the second mortgage and vice versa. Nilu Ray v. Asirbad Mandal (supra), Mukerji, J. elaborately went into the case, considered all the authorities on the subject and came to the conclusion that the causes of action on both the bonds were separate. If that is so, there can be no question that the mortgages were separate subjects and not one under S. 17 of the Court Fees Act. True, these cases relied upon by the learned Assistant Government Advocate are not under S. 17 of the Court Fees Act, but the principles laid down therein are helpful in coming to a conclusion as to whether the two mortgages in the circumstances stated above are two subjects or one subject. The ordinary meaning of the word "subject" when used in law is a thing or matter, over which a right is exercised, and the two mortgages were certainly two distinct matters. They could only be deemed to be one either by a covenant in the mortgage consolidating the two together or by some provision in law. It is conceded by Mr. Mitra that there is no clause in either of the bonds consolidating the two into one. This argument, therefore mainly was upon the legal aspect of the question and upon analogy. It was said that there could be only one cause of action in as much as the mortgagee was precluded from suing on only one of the bonds and had to include the two mortgages in this suit under the statutory provisions contained in the T. P. Act. O. 34, R. 1, C. P. C. and the authoritative decisions of Courts. O. 34, rule 1, has considerably amended and modified the law on the subject as it was set forth in S.85 of the Transfer of Property Act (Act IV of 1822). Under the present law particularly under the explanation to R. 1 of O. 34, a puisne mortgagee is not required to implead the prior mortgagee as a party in a suit for foreclosure or sale. The principle will be the same when the subsequent mortgagee and the prior mortgagee happen to be one and the same person. There is nothing in law to prevent the prior mortgagee from bringing a suit to enforce his mortgage without impleading the subsequent mortgagee. There is however, some risk, and probably the curtailment of some of the rights of the mortgagee who chooses to sue separately upon his two mortgages; he may not be allowed to sell the properties in the subsequent decree. When they were already sold in the prior decree. With these considerations we have no concern. The question is simply as to whether there was any bar to the mortgagee (plaintiff in the present case) in bringing his action separately. There was no such bar, and, therefore, there were two causes of action arising out of two transactions which were not merged into one and remained as distinct as before Therefore the two mortgages in the suit were two different subjects Hence the suit to enforce the two mortgages is covered by S. 17 of the Court Fees Act, and the report of the Stamp Reporter is correct, and the plaintiff-mortgagee (Resp. No. 1), must therefore deposit the deficit court-fee on the plaint.
