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Talaimand Singh and ors. Vs. Gobind Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All143(2); 29Ind.Cas.247
AppellantTalaimand Singh and ors.
RespondentGobind Singh and ors.
Excerpt:
provincial small cause courts act (ix of 1887), schedule ii, articles 41, 42 - decree on mortgage--payment by one co-mortgagor--suit for contribution--jurisdiction. - - the case is clearly one covered by article 41 of schedule ii to the provincial small cause courts act......one covered by article 41 of schedule ii to the provincial small cause courts act. it was a suit for contribution by a co-sharer in joint property in respect of a payment made by him of money due from a co-sharer. if the plaintiffs allegation is true, they as co-shares had to pay money payable by the defendants who were their co-sharers in the property, and they claimed contribution in respect of the payment made by them. in any case it is a suit covered by article 42, being in substance a suit by one of several joint mortgagors for contribution in respect of money paid by him for the redemption of the mortgaged property. the effect of the payment alleged to have been made by the plaintiffs was to redeem the property from the mortgage under which it was ordered to be sold......
Judgment:

P.C. Banerji, J.

1. This is an application for revision, and the only ground pressed is that the suit was not cognizable by the Court of Small Causes in which it was instituted, so that that Court had no jurisdiction to entertain the suit. In my opinion the plea raised is a valid one. There was a decree obtained against the parties to this suit upon a mortgage of 1891, which directed the mortgaged property to be sold. The plaintiffs' case was that this property belonged to both the parties and that as it was advertised for sale, they (the plaintiffs) had to discharge the amount of the decree in order to save the property from auction-sale; that they paid on account of defendants' share of the property a sum of Rs. 353-2-11 and that they were entitled to recover this sum from the defendants. The suit was to recover this sum of Rs. 353-2-11, and a further amount. The case is clearly one covered by Article 41 of Schedule II to the Provincial Small Cause Courts Act. It was a suit for contribution by a co-sharer in joint property in respect of a payment made by him of money due from a co-sharer. If the plaintiffs allegation is true, they as co-shares had to pay money payable by the defendants who were their co-sharers in the property, and they claimed contribution in respect of the payment made by them. In any case it is a suit covered by Article 42, being in substance a suit by one of several joint mortgagors for contribution in respect of money paid by him for the redemption of the mortgaged property. The effect of the payment alleged to have been made by the plaintiffs was to redeem the property from the mortgage under which it was ordered to be sold. Therefore, the suit was one which was not cognizable by the Court of Small Causes and that Court had no jurisdiction to try it. It is true that it was the applicants themselves who instituted the suit in the Court of Small Causes, but that did not give the Court jurisdiction to try it. I accordingly direct that the case be sent back to the Court below with directions to return the plaint to the plaintiffs for presentation in the proper Court. As it was the plaintiffs themselves who brought the suit in the Court below, they must bear all the costs of the respondents including costs in this Court.


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