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Munun Lal and ors. Vs. Munna Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All327
AppellantMunun Lal and ors.
RespondentMunna Lal and ors.
Excerpt:
mortgage by conditional sale - foreclosure--sale by mortgagee after foreclosure--rights of purchaser--suit for sale by puisne mortgages--ant no. ix of 1908 (indian limitation act), schedule article 134--limitation. - - we fail to see that the case of these defendants differs in any essential respect from that of transferees of property which has been sold as free of incumbrances, when, as a matter of fast, it is subject to a mortgage charge......now in suit a mortgage by conditional sale anterior in date to that of the plaintiffs. the prior mortgagee under this mortgage brought a suit for foreclosure, without impleading the plaintiffs, the puisne mortgagees. he obtained a decree for foreclosure and thus acquired the right, title and interest of the original mortgagor in the property covered by the mortgage by conditional sale. he then transferred the property by an out and out sale to these defendants nos. 9, 10 and 11, who are now the appellants before us. the mortgage deed on which the present suit is brought is one of the 19th of july, 1890, and the plaintiffs in order to maintain the suit are compelled to avail themselves of the special period of limitation allowed by section 31 of the indian limitation act, no. ix.....
Judgment:

Muhammad Rafiq and Piggott, JJ.

1. This was a suit for Bale upon a mortgage. It is now being contested by three persons, who were defendants Nos. 9, 10 and 11 in the original array of parties. In order to make clear the single point raised by this appeal it is sufficient to state the following facts. There was upon a part of the property now in suit a mortgage by conditional sale anterior in date to that of the plaintiffs. The prior mortgagee under this mortgage brought a suit for foreclosure, without impleading the plaintiffs, the puisne mortgagees. He obtained a decree for foreclosure and thus acquired the right, title and interest of the original mortgagor in the property covered by the mortgage by conditional sale. He then transferred the property by an out and out sale to these defendants Nos. 9, 10 and 11, who are now the appellants before us. The mortgage deed on which the present suit is brought is one of the 19th of July, 1890, and the plaintiffs in order to maintain the suit are compelled to avail themselves of the special period of limitation allowed by Section 31 of the Indian Limitation Act, No. IX of 1908. The case for the appellants now before us is that they are entitled to hold up the original prior mortgage by conditional sale as a shield against the plaintiffs' claim, so that the plaintiffs cannot bring the property to sale without first redeeming this prior mortgage. They further contend that, as transferees from the original prior mortgagee, they are entitled to plead limitation under Article 134 of Schedule I to the Limitation Act, and that consequently the present suit should be dismissed as time-barred in so far as it affects that portion of the property in suit which was covered by the prior mortgage. In oar opinion Article 134 of Schedule I to the Indian Limitation Act has no application to the present suit. In the first place, the suit is one for sale and is brought under the special provisions of Section 31 of Act IX of 1908. In the second place, the position of these defendants appellants is not that of transferees from a mortgagee in the sense of article 184 aforesaid. At the time of the transfer in their favour the property mortgaged had been foreclosed and their transferor had acquired all the rights of the original mortgagor in the property which he purported to transfer. He was, therefore, what ho represented himself as being, the owner of the property. We fail to see that the case of these defendants differs in any essential respect from that of transferees of property which has been sold as free of incumbrances, when, as a matter of fast, it is subject to a mortgage charge. For these reasons we hold that this appeal fails and it is hereby dismissed has been heard ex parte, so we make no order as to costs.


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