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Ram Gopal Vaish Vs. Mahanand Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All420
AppellantRam Gopal Vaish
RespondentMahanand Lal and ors.
Cases ReferredGoberdhan Das v. Makundi Lal A.I.R.
Excerpt:
- 1. the plaintiff-appellant brought a suit in which he asked that a certain mortgage-deed dated the 28th a april 1921, should be cancelled and declared to be null and void and ineffectual as against the plaintiff, but he gave as the date from which his cause of action arose the 28th of november 1921, which was the date on which the court passed an order proclaiming that mortgage to be a burden on a house, which the plaintiff has attached in execution of a decree. from this it may be seen that the plaintiff's suit is really a suit for a declaration that order is ineffective. the suit was not brought until the 29th of march, 1923, and it has been held by both the courts below that it is barred by limitation. we must agree with this view. the plaintiff had no cause of action to have this.....
Judgment:

1. The plaintiff-appellant brought a suit in which he asked that a certain mortgage-deed dated the 28th a April 1921, should be cancelled and declared to be null and void and ineffectual as against the plaintiff, but he gave as the date from which his cause of action arose the 28th of November 1921, which was the date on which the Court passed an order proclaiming that mortgage to be a burden on a house, which the plaintiff has attached in execution of a decree. From this it may be seen that the plaintiff's suit is really a suit for a declaration that order is ineffective. The suit was not brought until the 29th of March, 1923, and it has been held by both the Courts below that it is barred by limitation. We must agree with this view. The plaintiff had no cause of action to have this mortgage set aside except in virtue of the order passed by the Court, for he had no interest in the property. If his suit has been brought as we must hold, to set aside the order of the Court passed on the 28th of November 1921, it is certainly barred by limitation, because it must be held to be a suit instituted under Rule 63, Order 21, of the Civil Procedure Code. If authority is required for this finding we rely upon the ruling cited in the case of Goberdhan Das v. Makundi Lal A.I.R. 1923 All. 435 which is entirely relevant to this case.

2. Seeing this difficulty the plaintiff added an alternative date from which his cause of action was said to arise, namely, the 1st of April 1922, the date on which, as he says, an order was passed against the plaintiff, but this is really a perversion of the facts. What actually happened is stated in the judgment of the lower appellate Court. After the attachment of the house the opposite party made an application to have their mortgage notified; and the Court passed an order in their favour ex parte on the 28th of November 1921. The plaintiff made an objection to this order on the 17th of December 1921, and an order was passed, not against him but in his favour, on the 1st of April 1922, allowing a note of his objection to the application of the opposite party to be added to the proclamation. In our view limitation must run from the order dated the 28th of November 1921, whether it be considered to be an order under Rule 58 or under Rule 62 of Order 21. We find, therefore, that the lower appellate Court was right in deciding that the suit was barred by Article 11 of Act 9 of 1908, and we dismiss the appeal with costs including in this Court fees on the higher scale.


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