Pramada Charan Banerji and Muhammad Rafiq, JJ.
1. This appeal arises out of a suit brought by the plaintiffs-appellants to enforce a mortgage, dated the 10th of July, 1884, alleged to have been executed by Randhir Singh and Partab Singh.
2. Randhir Singh is dead and is represented by his son, Karan Singh and his daughter-in-law Musammat Radha, the widow, apparently, of a pre-deceased son. The share of Randhir Singh in the mortgaged property was sold to Chidammi Lal whose minor sons Daya Kishore and Jai Kishore are the defendants Nos. 4 and 5. The defendant No. 2 is the mortgagor, Partab Singh, and defendant No. 3, Nahar Singh is the son of Partab Singh.
3. The case in our opinion was not properly tried. On the first date fixed for hearing the learned Subordinate Judge dismissed the suit for default of appearance of both parties. On the same date, i.e. the 16th of September, 1911, lie restored the case to its file. On that date Partab Singh and Karan Singh filed a compromise and the learned Judge proceeded to hear the case ex parte against the other defendants and made a decree in the terms of the compromise. Subsequently an application was made on behalf of Nahar Singh and Musammat Radha to have the ex parte decree made against them set aside. This application was granted and the case was re-heard. It is clear that Musammat Radha has no interest in the suit. Strictly speaking Karan Singh also has no interest in the suit because the plaintiff cannot enforce the mortgage against any property other than the mortgaged property and Randhir Singh's share of the mortgaged property was sold to Chidammi and is in the possession of the minor defendants Daya Kishore and Jai Kishore.
4. Nahar Singh filed a written statement in which he said that his father Partab Singh was of unsound mind and was under the influence of the plaintiffs, and that the bond had been discharged by Chidammi (the purchaser of Randhir Singh's property) and had been returned to him. He denied the allegation of loss of the bond made on behalf of the plaintiffs. Partab Singh and Karan Singh admitted the claim. Musammat Radha denied the bond and Musammat Chironji (the mother and guardian of the minor defendants) did not enter appearance. The court proceeded to try the suit, and held that the claim was time-barred.
5. This finding on the question of limitation was, as the lower appellate court has held, erroneous in view of the rulings of this Court. The learned Subordinate Judge, however, also tried the other issues framed by him. He was of opinion that the loss of the bond was not proved, and that the bond had been discharged. He accordingly dismissed the suit. Upon appeal the learned District Judge, as we have said above, disagreed with the learned Subordinate Judge on the question of limitation, but he held that the loss of the bond had not been proved, and accordingly affirmed the decision of the first court.
6. It is contended on behalf of the appellants that the question of the loss of the bond was immaterial. It is said that it was Nahar Singh who denied the loss, but as he admitted the bond and only pleaded payment, the question of loss was only material for the purpose of determining whether the bond had been discharged and returned. We think this contention is valid. Nahar Singh, however, also stated that his father was of unsound mind and was under the influence of the plaintiffs. That was a question which the court of first instance ought to have tried but did not try. It was alleged that the bond had been admitted by Musammat Chironji, the mother of the minor defendants who are the real parties interested in the portion of the mortgaged property which belonged to Randhir Singh. That question also was not tried by the court of first instance. If she admitted the genuineness of the mortgage and the liability of the property for the mortgage debt that would be a strong piece of evidence in favour of the plaintiff; but it would have to be proved that she made the admission. For all these reasons we think that the case has not been properly tried. We, accordingly, discharge the decrees of the courts below and remand the case to the court of first instance with directions to re-admit the suit under its original number and try it de novo after framing proper issues. Costs here and hitherto will be costs in the cause.