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Musammat Imam Bandi Vs. Puran Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All187; 52Ind.Cas.646
AppellantMusammat Imam Bandi
RespondentPuran Prasad and anr.
Excerpt:
limitation act (ix of 1908), schedule i, article 120 - declaration that property is not liable to sale in execution of mortgage decree, suit for--limitation, commencement of. - - this view is clearly erroneous, the fact of a mortgage having been made did not affect her so long as no effort was made to sell the property in enforcement of the mortgage......suit on the 14th of december 1907 against the respondents' mortgagors to recover possession of the property mortgaged. she obtained a decree from the court of first instance and that decree was affirmed by the high court. to that suit the present respondents were not parties, and, therefore, the decree in that suit is not binding on them. they brought a suit on the basis of their mortgage and obtained a decree against the mortgagors on the 5th of august 1912. they made the present plaintiff a party to that suit but the suit was dismissed against her with costs. however, in execution of that decree they have applied for sale of the mortgaged property which the plaintiff claims to be her own property. the plaintiff has brought this suit for a declaration that the property is hers and is.....
Judgment:

1. The judgment of the Court below cannot, in our opinion, be supported. The learned Judge has dismissed the suit on the ground that it is barred by limitation. The facts of the case are set forth in his judgment. It appears that Muhammadi Begam and one Agha Meer mortgaged the property in suit on the 20th of September 1807 to the respondents. After this mortgage the plaintiff brought a suit on the 14th of December 1907 against the respondents' mortgagors to recover possession of the property mortgaged. She obtained a decree from the Court of first instance and that decree was affirmed by the High Court. To that suit the present respondents were not parties, and, therefore, the decree in that suit is not binding on them. They brought a suit on the basis of their mortgage and obtained a decree against the mortgagors on the 5th of August 1912. They made the present plaintiff a party to that suit but the suit was dismissed against her with costs. However, in execution of that decree they have applied for sale of the mortgaged property which the plaintiff claims to be her own property. The plaintiff has brought this suit for a declaration that the property is hers and is not liable to sale in execution of the defendants' decree. The learned Judge holds that the plaintiff's cause of action arose on the 20th of September 1907 when the mortgage in favour of the defendants respondents was made. This view is clearly erroneous, The fact of a mortgage having been made did not affect her so long as no effort was made to sell the property in enforcement of the mortgage. This has now been done and the plaintiff's cause of action accrued on the date on which attempt was made by the defendants to sell the property. The suit is admittedly within six years from that date and, therefore, is not time-barred. We allow the appeal, set aside the decree of the Court below and remand the case to that Court with directions to re-admit it under its original number in the register and to dispose of it on the merits. The appellant will have her costs of this appeal, including fees on the higher scale. Other costs will abide the event.


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