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Krishna Yesuji Shelar Vs. Vithal Narayan Shelar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 912 of 1924
Judge
Reported in(1926)28BOMLR759
AppellantKrishna Yesuji Shelar
RespondentVithal Narayan Shelar
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 1-redemption suit- tenants from mortgagee-tenants setting up their own title-tenants proper parties.; in a redemption suit, persons alleged to be tenants of the mortgagee are proper parties under order xxxiv, rule 1, of the civil procedure code. it is the duty of the court to settle the disputes between the plaintiff and such defendants and not leave it over for future litigation. - - 4 to 9, the learned assistant judge failed to notice that the law, as laid down in jaggeswar dutt v......however, has taken, they must be treated as having been properly impleaded.fawcett, j.1. [as to joinder of parties his lordship said :] on the legal point as to the joinder of defendants nos. 4 to 9, the learned assistant judge failed to notice that the law, as laid down in jaggeswar dutt v. bhuban mohan mitra i.l.r.(1906) cal. 425 and other cases, is qualified by an exception in the case where the person asserting a title paramount is connected with the mortgage. here, the defendants nos. 4 to 8 were connected with the mortgage on the plaintiffs allegation that they were tenants of the mortgagee, and as they were properly joined under order xxxiv, rule 1, it is incumbent upon the court to settle the dispute between the plaintiff and the defendants nos. 4 to 8, and not leave it over.....
Judgment:

Madgavkar, J.

1. [As to joinder of parties his lordship said :] As regards the frame of the suit, the present respondents were proper parties on the contention of the plaintiff. But, as they denied that they were tenants of the other defendants, it was open to the Court, if it chose, to frame a preliminary issue on the point and continue or dismiss them according to the finding. In the course that the litigation, however, has taken, they must be treated as having been properly impleaded.

Fawcett, J.

1. [As to joinder of parties his lordship said :] On the legal point as to the joinder of defendants Nos. 4 to 9, the learned Assistant Judge failed to notice that the law, as laid down in Jaggeswar Dutt v. Bhuban Mohan Mitra I.L.R.(1906) Cal. 425 and other cases, is qualified by an exception in the case where the person asserting a title paramount is connected with the mortgage. Here, the defendants Nos. 4 to 8 were connected with the mortgage on the plaintiffs allegation that they were tenants of the mortgagee, and as they were properly joined under Order XXXIV, Rule 1, it is incumbent upon the Court to settle the dispute between the plaintiff and the defendants Nos. 4 to 8, and not leave it over for future litigation. It is sufficient to refer to the provisions of Order II, Rule 1; Order I, Rules 2 and 3; and Order VI, Rule 17.


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