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Eknath Pandoba Kosti Vs. Dagduram Sambhuram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 408 of 1911
Judge
Reported in(1912)14BOMLR750; 17Ind.Cas.87
AppellantEknath Pandoba Kosti
RespondentDagduram Sambhuram
Excerpt:
.....act, and that the time taken up in conciliation could not be deducted for defendant no. 3 was not a necessary party to the suit.-;overruling the contention, that though the defendant no. 3 was not a party to the order dated the 19th june 1907 to set aside-which order the present suit was brought, still he was a necessary party to that suit brought on the strength of a mortgage, under the transfer of property act, and that therefore the time taken up in conciliation proceedings should be excluded from the period of limitation. - .....that, if the period occupied by the application for the conciliator's certificate is excluded, the present suit is in time. but it is argued that that period should not be deducted, because, the defendant no. 3 was not a necessary party to the suit. mr. khare argues that the suit was merely to set aside the order passed on the 19th of june 1907 in the miscellaneous proceeding. to that order, it is true, the defendant no. 3 was not a party, but whether he was a party to that order or not, the present suit is one brought on the strength of a mortgage and the transfer of property act directs that all persons interested in mortgaged property should be made parties to a suit on the mortgage. therefore defendant no. 3 was a necessary party and the suit must be held to have been in time.5. the.....
Judgment:

Narayan G. Chandavarkar, Kt., Acting C.J.

1. It is contended in support of this Second Appeal that the presence of the mortgagor as a party-defendant was not necessary and that therefore the conciliator's certificate does not avail the plaintiffs to bring the suit within the period of limitation under Article 11 of Schedule II to the Limitation Act.

2. This point is urged on the following facts: Defendants Nos. 1 and 2, the present appellants, obtained a decree upon their mortgage against their mortgagor, defendant No. 3. The present plaintiffs were not parties to that suit. Having obtained a decree upon the mortgage the said defendants sought to sell the property in satisfaction of their decree. Thereupon the plaintiffs intervened, claiming a lien upon the property in virtue of a mortgage in their favour subsequent to the mortgage of defendants 1 and 2. In the miscellaneous proceedings in which they intervened, the Court held their mortgage not proved and their application that the property should be sold in satisfaction of the mortgage decree of defendants Nos. 1 and 2 subject to their own mortgage was rejected. That was on the 19th of June 1907. The present is a suit to establish their right founded on that mortgage and its object is to get rid of the order passed against them in the miscellaneous proceedings. Ordinarily the suit should have been brought under Article 11 of the Limitation Act on or before the 19th of June 1908. But it was filed on the 15th of July 1908. Prima facie, therefore, the suit was barred by limitation.

3. The plaintiffs, however, seek to bring the suit within the period of limitation under Article 11 on the ground that as their mortgagor, defendant No. 3, was an agriculturist, they had to apply for a certificate from the conciliator under the Dekkhan Agriculturists' Relief Act. They claim deduction of the period occupied in obtaining the certificate.

4. It is conceded by Mr. P. P. Khare for the appellants that, if the period occupied by the application for the conciliator's certificate is excluded, the present suit is in time. But it is argued that that period should not be deducted, because, the defendant No. 3 was not a necessary party to the suit. Mr. Khare argues that the suit was merely to set aside the order passed on the 19th of June 1907 in the miscellaneous proceeding. To that order, it is true, the defendant No. 3 was not a party, but whether he was a party to that order or not, the present suit is one brought on the strength of a mortgage and the Transfer of Property Act directs that all persons interested in mortgaged property should be made parties to a suit on the mortgage. Therefore defendant No. 3 was a necessary party and the suit must be held to have been in time.

5. The decree is confirmed with costs.


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