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Partap and ors. Vs. Ram Sewak and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in96Ind.Cas.304
AppellantPartap and ors.
RespondentRam Sewak and ors.
Excerpt:
civil procedure code (act v of 1908), order vi, rule 17 - pleadings and proof--appeal, second--new case, whether can be set up--redemption, suit for--mortgage alleged not proved. - - it held that as the plaintiffs did not ask for redemption of any mortgage other than the mortgage of the 5th of january, 1872, and that mortgage having been satisfied, the suit must fail......circumstances, the sons of sheodin were minors and their mother was anxious to pay off a simple money-decree standing against the sons. she, accordingly, arranged with hira lal and ganesh that the latter should advance a sum of rs. 923-8-4 to pay off the decree and a sum of rs. 325 to pay off mohan. hira lal and ganesh advanced these two sums of money and were put in possession of the property, which had been in the possession of mohan. no. deed was executed but certain statements of facts were made in a rubkar (proceedings) in the revenue court on the 20th of november, 1882.3. the court of first instance decreed the suit for recovery of possession on payment of rs. 325. the lower appellate court was of opinion that the mortgage of 1872 had been extinguished and that it was probable.....
Judgment:

1. The principal question that arises in this Letters Patent Appeal is whether the learned single Judge of this Court was right in allowing an amendment of prayer in the plaint. There was no prayer for amendment of the plaint.

2. The respondents here were the plaintiffs in the Court of first instance. They brought the suit, out of which this appeal has arisen, to redeem a mortgage, dated the 5th of January, 1872, executed by one Sheodih in favour of one Mohan. The plaintiffs are transferees of Sheodin's heirs. They pleaded that the defendants were-transferees from Mohan's heirs and that, therefore, they, were the mortgagees under the mortgage aforesaid. The defence was that the mortgage of 1872 was paid off by Hira Lal and Ganesh, the predecessors-in-title of the, defendants, under the following circumstances, the sons of Sheodin were minors and their mother was anxious to pay off a simple money-decree standing against the sons. She, accordingly, arranged with Hira Lal and Ganesh that the latter should advance a sum of Rs. 923-8-4 to pay off the decree and a sum of Rs. 325 to pay off Mohan. Hira Lal and Ganesh advanced these two sums of money and were put in possession of the property, which had been in the possession of Mohan. No. deed was executed but certain statements of facts were made in a rubkar (proceedings) in the Revenue Court on the 20th of November, 1882.

3. The Court of first instance decreed the suit for recovery of possession on payment of Rs. 325. The lower Appellate Court was of opinion that the mortgage of 1872 had been extinguished and that it was probable that Hira Lal and Ganesh had become owners of the property on account of being in possession of the same since November, 1832. The Court, however, did not express any definite opinion on the point. It held that as the plaintiffs did not ask for redemption of any mortgage other than the mortgage of the 5th of January, 1872, and that mortgage having been satisfied, the suit must fail. It accordingly dismissed the suit.

4. In this Court the plaintiffs successfully persuaded a learned Judge to accept an application for amendment of the prayer in the plaint, the result of which was that, in the place of the mortgage of 1872 a mortgage of the 20th of November, 1882, was substituted, in place of the mortgage money of Rs. 325 a mortgage-money of Rs. 1,248 and odd was substituted and a decree for redemption was granted on condition of payment of the larger sum of the mortgage-money.

5. It has been urged on behalf of the defendants-appellants here that they had no opportunity to meet the new case. They urge that if a second suit were permitted and had been brought, they might have raised proper defences to such a suit.

6. We think that this contention is right. The plaintiffs should have been pinned down to the specific case they had set up in the plaint and should not have been allowed to set rip a new case in the second appeal for which there was no adequate investigation in the Courts below.

7. We allow the, appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower Appellate Court. The respondents must pay the costs of this litigation throughout, including costs in this Court on the higher scale.


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