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Seth Mahabir Prasad Vs. Kanhaiya Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All99; 74Ind.Cas.372
AppellantSeth Mahabir Prasad
RespondentKanhaiya Lal and ors.
Cases ReferredGajadhar Singh v. Kishen Jiwan Lai
Excerpt:
limitation act (ix of 1908), schedule i, article 181 - decree, preliminary, for salt on mortgage--confirmation on appeal--application for decree absolute--starting point of limitation. - - both courts below have held that limitation began to run from the date of the high court's decree, namely, the 1st of august 1918 and that, therefore, it was well within limitation......purchaser of part of the mortgaged property. he set up, among other defences, that he had a prior mortgage on the property. the plaintiff's suit was decreed subject to his paying off the prior mortgage set up by mahabir prasad. a preliminary decree was passed on the 1411 of march 1916. from that decree the plaintiff appealed against so much of the decree as directed him to pay off the prior mortgage set up by mahabir prasad. that appeal was decreed by the district judge on the 2nd of june 1916. from that decree mahabir prasad appealed to the high court and his appeal was dismissed on the 1st of august 1918. then the plaintiff applied for a final decree on the 14th of april 1920. both courts have allowed the application. the defendant, mahabir prasad, who is now represented by the.....
Judgment:

1. Gulab Singh was the mortgagor, and Gopi Ram was the mortgagee, who is now represented by the plaintiff. Mahabir Prasad was joined as a defendant in the suit by the plaintifi for sale on the mortgage executed by Gulab Singh, as a subsequent purchaser of part of the mortgaged property. He set up, among other defences, that he had a prior mortgage on the property. The plaintiff's suit was decreed subject to his paying off the prior mortgage set up by Mahabir Prasad. A preliminary decree was passed on the 1411 of March 1916. From that decree the plaintiff appealed against so much of the decree as directed him to pay off the prior mortgage set up by Mahabir Prasad. That appeal was decreed by the District Judge on the 2nd of June 1916. From that decree Mahabir Prasad appealed to the High Court and his appeal was dismissed on the 1st of August 1918. Then the plaintiff applied for a final decree on the 14th of April 1920. Both Courts have allowed the application. The defendant, Mahabir Prasad, who is now represented by the appellant in this appeal, contended that the application was barred by limitation. Both Courts below have held that limitation began to run from the date of the High Court's decree, namely, the 1st of August 1918 and that, therefore, it was well within limitation. In appeal before us it is argued that inasmuch as in the appeal by the plaintiff before the District Judge against the prior mortgage set up by Mahabir Prasad some of the defendants were not made parties, that decree must be taken to be the starting point of Limitation. It seems to us that, inasmuch as Mahabir Prasad himself appealed to this High Court, he cannot be heard to advance that plea. Reliance has been placed on a case reported as Gayan Singh v. Ata Husain 60 Ind. Cas. 817 : 19 A.L.J. 83 : 43 a. 320 but there the objection was upheld in, favour of the parties who had not appealed. It seems to us that this easels covered by the author to of Nizamuddin Shah v. Bohra Bhim Sen 43 Ind. Cas. 870 : 40 a. 203 : 16 A.L.J. 85, winch followed the Full Bench ruling in Gajadhar Singh v. Kishen Jiwan Lai 42 Ind. Cas. 931 : 39 A. 641 : 15 A.L.J. 734. In our opinion the appeal must be dismissed with costs including in this Court fees on the higher scale.


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