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Nait Ram Vs. Roshan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;property
CourtAllahabad
Decided On
Reported inAIR1932All62; 136Ind.Cas.624
AppellantNait Ram
RespondentRoshan Lal and ors.
Excerpt:
- - he unsuccessfully tried to implead the subsequent mortgagee or his representative in the execution proceedings but failed......to roshan lal respondent 1.2. on 21st february 1923, net ram the plaintiff-appellant, instituted a suit for sale against qadam singh, his sons and grandsons so enforce his mortgage of 12th august 1910. in this suit he did not implead either shib shankar or roshan lal. he unsuccessfully tried to implead the subsequent mortgagee or his representative in the execution proceedings but failed. on 26th june 1925 roshan lal, in execution of his decree on foot of the mortgage of 12th january 1915, purchased the property now in suit and obtained possession thereof on 11th november 1926.3. nait ram finding that he could not obtain possession of the property mortgaged to him instituted a second suit for sale on the mortgage of 12th august 1910 impleading qadam singh, his sons and grandsons and.....
Judgment:

Banerji, J.

1. This is a plaintiff's appeal in a suit for sale on a mortgage of 12th August 1910 executed by Qadam Singh. On 18th January 1915 Qadam Singh executed another mortgage in favour of Shib Shankar. On 26th May 1920, Shib Shankar sued on his mortgage of 18th January 1915 and obtained a decree which was made final on 2nd February 1921. Shib Shankar then sold the decree to Roshan Lal respondent 1.

2. On 21st February 1923, Net Ram the plaintiff-appellant, instituted a suit for sale against Qadam Singh, his sons and grandsons So enforce his mortgage of 12th August 1910. In this suit he did not implead either Shib Shankar or Roshan Lal. He unsuccessfully tried to implead the subsequent mortgagee or his representative in the execution proceedings but failed. On 26th June 1925 Roshan Lal, in execution of his decree on foot of the mortgage of 12th January 1915, purchased the property now in suit and obtained possession thereof on 11th November 1926.

3. Nait Ram finding that he could not obtain possession of the property mortgaged to him instituted a second suit for sale on the mortgage of 12th August 1910 impleading Qadam Singh, his sons and grandsons and Roshan Lal the purchaser of the property in execution of the decree obtained under' the subsequent mortgage. The plaintiff was met with the plea that the claim was barred by limitation as the time for suit expired on 13th August 1922. This the plaintiff admitted but pleaded that Roshan Lal had acknowledged his liability on 17th June 1921 in a statement made in an affidavit of that date.

4. The Court of first instance disallowed the plea of the defendant and decreed the suit. On appeal the learned Judge has dismissed the suit; hence this second appeal before us.

5. We have heard the learned advocate for the parties and have examined all the cases that have been laid before us carefully. We have come to the conclusion that the case must be decided on what the defendant Roshan Lal must be deemed to have said in the affidavit of 17th June 1921 and if that amounts to an acknowledgment of liability, i.e., an admission of any liability by' himself or liability on the property the claim cannot be held to be barred by limitation.

6. Under Order 21, Rule 66, Civil P.C., every application for an order for sale has to be accompanied by a statement signed and verified in the manner prescribed for the signing and verification of pleadings and containing:

so far as they are known to or can be ascertained by the person making the verification the matters required by Sub-rule 2 to be specified in the proclamation.

7. Clause (c), Sub-rule 2 says 'any encumbrance to which the property is liable' is to be stated.

8. An examination of the statement of Roshan Lal dated 17th June 1921 in our opinion shows that all that Roshan Lal informed the Court was that upon an examination of the registration office he found that there was a mortgage deed of the property of which the sale proclamation was to issue which had been registered on 17th August 1910.

9. This in our opinion is not an acknowledgment of any liability affixed to the property or personally to Roshan Lal. It cannot be taken to be an acknowledgment of a liability within the meaning of Section 19, Lim. Act.

10. For the above reasons we are of opinion that this appeal must be dismissed and we dismiss it with costs.


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