Skip to content


Banwari Lal and anr. Vs. Nand Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All611
AppellantBanwari Lal and anr.
RespondentNand Ram and ors.
Excerpt:
- - if the plaintiff failed to implead them in his suit and the limitation had now expired, it is no longer open to the plaintiff to recover possession of the property from these defendants who are in the position of mortgagors......a suit for sale on the basis of a mortgage deed in his favour, dated 19th february l908. in this suit he impleaded neither defendant 2 nor defendant 1. a decree for sale was obtained and in execution of it, the mortgaged property was put up for sale and purchased by the plaintiff decree-holder himself. when he went to the revenue court to get mutation of names effected, he was resisted by the defendants auction-purchasers with the result that the revenue court refused to enter his name in the revenue papers. he has now filed this suit praying that the defendants should be called upon to redeem him and in case of default their rights should be foreclosed.2. the court of first instance held that the plaintiff's suit was not maintainable against the contesting defendants. the learned.....
Judgment:

1. This is a defendants' appeal arising out of a suit brought by a mortgagee who has purchased the property in execution of a mortgage-decree against certain persons who had acquired the property in execution of a simple money-decree and had not been impleaded in the mortgage suit. It appears that there was a simple money decree for profits against defendant 3 in execution of which a certain share was sold at auction and purchased by defendant 2 in 1918. Subsequently on the 3rd January 1921, defendant 2 sold a part of that share to defendant 1. In 1920, the present plaintiff instituted a suit for sale on the basis of a mortgage deed in his favour, dated 19th February l908. In this suit he impleaded neither defendant 2 nor defendant 1. A decree for sale was obtained and in execution of it, the mortgaged property was put up for sale and purchased by the plaintiff decree-holder himself. When he went to the revenue Court to get mutation of names effected, he was resisted by the defendants auction-purchasers with the result that the revenue Court refused to enter his name in the revenue papers. He has now filed this suit praying that the defendants should be called upon to redeem him and in case of default their rights should be foreclosed.

2. The Court of first instance held that the plaintiff's suit was not maintainable against the contesting defendants. The learned District Judge has come to a contrary conclusion. He has relied mainly on the principle laid down in the case of Babu Lal v. Jalakia [1917] 14 A.L.J. 1146. He has pointed out that the soundness of the view expressed in that case was not accepted by another Bench in the case of Ram Narayan v. Somi A.I.R. 1923 All. 449. The learned vakil for the appellant has further relied on the recent case of Lachmi Narain Das v. Hirdey Narain : AIR1926All480 which is in conformity with the second case. In our opinion, none of these cases is directly in point, for in all these cases the competition was between a prior mortgagee and a subsequent mortgagee, both of whom had obtained decrees on their mortgages without impleading the other. It is, therefore, unnecessary for us to express any view on the conflict of opinion in the cases referred to above.

3. In the present case, the defendants were purchasers in execution of a simple money-decree of a part of the interest of the mortgagor. They were, therefore, representatives of the mortgagor and not of the subsequent mortgagees. They were necessary parties to the suit brought by the plaintiff on his mortgage. If the plaintiff failed to implead them in his suit and the limitation had now expired, it is no longer open to the plaintiff to recover possession of the property from these defendants who are in the position of mortgagors. It is too late for the plaintiff to call upon them now to redeem his mortgage on the risk of losing all their interest in the property. The present case is governed by the Full Bench case of Hargu Lal Singh v. Gobind Rai [1897] 19 All. 541 where under similar circumstances it was held that a subsequent suit against the representative of the mortgagor who had not been impleaded, was not maintainable.

4. The learned vakil for the respondents has sought to rely on the case of Ganpat Lal v. Bindabasini Prashad Narayan Singh [1920] 47 Cal. 924 decided by their Lordships of the Privy Council and reported in 18 A.L.J. page 555. That case in our opinion had no application. There certain minor members of a joint Hindu family who had been impleaded in a mortgage suit were not properly represented inasmuch as no proper guardian ad litem had been appointed. After the decree and the sale, they sued for a declaration that their right of redemption was intact. In the plaint they did not object to the mortgage nor to the sale. Their Lordships held that without trying to set aside these, the suit for the declaration was not maintainable. It is obvious that in that case the utmost that had happened was an irregularity in the omission to appoint a guardian ad litem. Even if the suit were to be decreed, the former would have had to be restored and proper guardians appointed.

5. When the plaintiffs were not challenging the debt, the decree and the sale, their Lordships held that their right of redemption was lost. That case, therefore, is not in point. We accordingly allow this appeal and setting aside the decree of the lower appellate Court, restore that of the Court of first instance with costs in all Courts including fees in this Court on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //