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Shafi-ud-dIn and ors. Vs. Lochan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All94
AppellantShafi-ud-dIn and ors.
RespondentLochan Singh and anr.
Excerpt:
execution of decree - resistance to execution--act x of 1877 (civil procedure code), section 332--act viii of 1859 (civil procedure code), section 230--repeal. - .....they were not actually dispossessed until november 1877, when act x of 1877 was in force, it appears to us that they were entitled to the benefit of pearson 332 of that act. it is true that the order under colour of which the decree-holders ousted them was passed before the act came into operation, but until the ejectment of the mortgagees no right accrued to them to oppose the misuse of the order, and when that right accrued it is governed by the law then in force. we decree the appeal, and reversing the decree of the lower court restore that of the court of first instance with costs.2. the respondents are of course at liberty in a suit properly instituted to try the question of title and to apply for the ejectment of the appellants,
Judgment:

Turner, J.

1. The grounds on which the Judge has dismissed the suit cannot be sustained: the mortgagees were in possession on their own account. The question then arises whether in this suit the mortgagees may rely on their possession only and claim to be restored to possession, or whether they must prove their title. Seeing that they were not actually dispossessed until November 1877, when Act X of 1877 was in force, it appears to us that they were entitled to the benefit of Pearson 332 of that Act. It is true that the order under colour of which the decree-holders ousted them was passed before the Act came into operation, but until the ejectment of the mortgagees no right accrued to them to oppose the misuse of the order, and when that right accrued it is governed by the law then in force. We decree the appeal, and reversing the decree of the lower Court restore that of the Court of First Instance with costs.

2. The respondents are of course at liberty in a suit properly instituted to try the question of title and to apply for the ejectment of the appellants,


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