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Mohan Lal Vs. Lekhraj Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All137; 33Ind.Cas.111
AppellantMohan Lal
RespondentLekhraj Singh
Excerpt:
mortgage, suit on - simple money-decree, prayer for--discretion of court--practice--limitation act (ix of 1908), schedule i article. 116--starting of time. - - the present case is one in which we think that the indulgence of the court might well have been given if the suit had been brought a little earlier......this is a finding of fact binding upon us in second appeal. we have been asked to give a simple money-decree against lekhraj. the court is not bound to give a simple money-decree where the plaintiff sues to realise his debts on foot of a mortgage. no doubt a simple money-decree is frequently given by the court but, in our opinion, this is a matter of grace. when it does so it should, strictly speaking, amend -the plaint by adding a claim for a simple money-decree against the individual and the decree ought to be against that individual. the present case is one in which we think that the indulgence of the court might well have been given if the suit had been brought a little earlier. the mortgage as already stated was dated the 18th of november 1907, and the present suit was not.....
Judgment:

1. This appeal arises out of a suit upon a mortgage, dated the 18th of November 1907. Both the Courts below have found that the bond was duly executed and the consideration paid. They have also found that there was no legal necessity. This is a finding of fact binding upon us in second appeal. We have been asked to give a simple money-decree against Lekhraj. The Court is not bound to give a simple money-decree where the plaintiff sues to realise his debts on foot of a mortgage. No doubt a simple money-decree is frequently given by the Court but, in our opinion, this is a matter of grace. When it does so it should, strictly speaking, amend -the plaint by adding a claim for a simple money-decree against the individual and the decree ought to be against that individual. The present case is one in which we think that the indulgence of the Court might well have been given if the suit had been brought a little earlier. The mortgage as already stated was dated the 18th of November 1907, and the present suit was not instituted until the 21st of November 1913. Therefore, if we are to calculate limitation from the date of the bond the claim for a simple money-decree is time-barred.. It is contended that because the money under the terms of the bond was not paid until the time of registration, time did not begin to run until registration, that is to say, the 21st of November 1907. We think that it is extremely doubtful that this contention is correct or that the plaintiff would have been entitled to a simple money-decree if he had sued for that relief. Under these circumstances we dismiss the appeal but direct that the parties pay their own costs of the appeal.


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