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Musammat Jey Devi and anr. Vs. Mahadeo Prashad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.373
AppellantMusammat Jey Devi and anr.
RespondentMahadeo Prashad and ors.
Excerpt:
minority, plea of, raised for the first time, in appeal - remand--ex parte decree set aside--civil procedure code (act xiv of 1882), section 108--suit tried de novo. - .....among the defendants, who were not parties to the appeal, were lachhmi narain appellant, and sheo darshan lal, whose .widow is the appellant jai devi. after remand the case was re-tried in the absence of lachm inarain and sheo darshau and a decree for foreclosure was made against all the defendants. sheo darshan having in the meantime died, jai devi and lachmi narain made an application under section 108 of the code of civil procedure, 1882, to have the decree passed against them ex parte set aside, on the ground that they had no notice of the suit. their application was granted and the case was re-opened and re-heard. jai devi and lachhmi narain raised various pleas in answer to the claim but the court of first instance overruled them and made a decree against them. from this.....
Judgment:

1. This appeal arises out of a suit for foreclosure of a mortgage, dated the 14th of March 1901, executed in favour of one Brij Lal. The plaintiff is the Assignee of the mortgage from Brij Lal. The Court of first instance made a simple money decree against all the defendants and dismissed the claim for foreclosure. An appeal was preferred to the lower appellate Court by some of the defendants, and objections were taken under Section 561 of Act XIV of 1882 by the plaintiff. The objection of the plaintiff prevailed in the appellate Court and the case was remanded to the Court of first instance in order that a proper decree might be made against all the defendants including such defendants as were not parties to the appeal to the lower appellate Court. Among the defendants, who were not parties to the appeal, were Lachhmi Narain appellant, and Sheo Darshan Lal, whose .widow is the appellant Jai Devi. After remand the case was re-tried in the absence of Lachm iNarain and Sheo Darshau and a decree for foreclosure was made against all the defendants. Sheo Darshan having in the meantime died, Jai Devi and Lachmi Narain made an application under Section 108 of the Code of Civil Procedure, 1882, to have the decree passed against them ex parte set aside, on the ground that they had no notice of the suit. Their application was granted and the case was re-opened and re-heard. Jai Devi and Lachhmi Narain raised various pleas in answer to the claim but the Court of first instance overruled them and made a decree against them. From this decree they appealed to the lower appellate Court and in that Court for the his time a plea was taken to the effect that Sheo Darshan Lal was a minor on the date on which the mortgage of the 14th of March 1901 was executed and that consequently the mortgage could not be enforced as against him or his property. The learned Judge of the lower appellate Court refused to entertain this plea on the ground that it had not been raised in the Court of first instance and it did not form the subject of an issue in that Court. The appeal preferred to the lower appellate Court was dismissed.

2. From the decree made by the lower appellate Court this appeal has been preferred. Two pleas have been urged before us. The first is that the Court below ought to have tried the question whether Sheo Darshan Lal was or was not a minor on the date of the mortgage. And the second is that interest should not have been allowed at the rate of Rs. 3 per cent, per mensem.

3. As regards the first plea we think the Court below is right. After the case was re-opened upon the application made by the present appellants under Section 108, they did not raise any plea to the effect that Sheo Darshan was a minor on the date of the mortgage but on the contrary they alleged that about the time of the mortgage Sheo Darshan had attained majority. They cannot, therefore, be allowed now to change their ground and urge that Sheo Darshan was a minor on the date of the mortgage.

4. As regards the question of interest, the contention is that in the decree originally made by the Court of first instance the amount of interest allowed was a smaller sum than that now. awarded and that the rate of interest awarded was only 2 per cent, and not 3 per cent, per mensem as allowed by the decree under appeal. It is said that the original decree of the Court of first instance had become final as against the present appellants on the question of interest and that the Courts below were wrong in reopening that question. We think that there is no force in this contention. After the remand, the whole case was re-opened, the original decree having been set aside. Again after the Court of first instance had after remand made a decree ex parte against the present appellants for foreclosure, the appellants got that decree set aside under Section 108. to that as against them the whole case was re-opened and it had to be tried de novo. The question of interest had, therefore, to be determined and the Courts below were justified in trying that question. The correctness of their conclusion cannot be questioned in view of the provisions contained in the mortgage-deed. The appeal, therefore, fails and is dismissed with costs including fees on the higher scale. We extend the time for payment by three months from this date.


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