1. The District Judge, although finding that the mortgage was not binding on the plaintiffs, refused to give them a declaratory decree to that effect on the ground of their delay in bringing this suit for four years.
2. No doubt the grant of the relief herein prayed was within the discretion of the Court, but the question is whether mere delay, so long as the suit is brought within the prescribed period of limitation, was a good ground for withholding the relief to which the plaintiffs were prima facie entitled. Inasmuch as in this country a period of limitation is prescribed oven for suits where the grant of relief sought is within the discretion of the Court, mere lapse of time short of the period of limitation should ordinarily be held not to be a good ground for refusing relief. Even according to the English decisions, in following which we should be cautious for the reasons pointed out by FRERE and HOLLOWAY, JJ., in Peddamuthulaty v. Timma Reddy 2 M.H.C.R. 270 more delay is not a sufficient cause. To operate as a bar to relief the delay should be such as to amount to waiver of the plaintiffs' right by acquiescence or where by his conduct and neglect he has. though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted Erlanger v. New Sombrero Phosphate Company L.R. 3 App. Cas. 1218 vide the remarks of Lord Penzance at Page 1231 and of Lord BLACKBURN at page 1279. When such is not the case any lapse of time should not disentitle a claimant to relief to which he has otherwise shown his title Of this, the recent case of Rochefoucauld v. Bonstead L.R. 1897 1 Ch. D. 196 is a good illustration. The same principle has been acted upon by the Bombay High Court with reference to mandatory injunctions [Jamnadas Shankarial v. Atmaram Harjivan I.L.R. 2 Bom. 133. 'Examining the present case in the light of these observations, we find no adequate ground for holding that there was waiver or such conduct or neglect as would justify us in refusing the plaintiffs the declaration they are otherwise found to be entitled to, nor should it be overlooked that in this case the party through whom the defendants claim entered into the transaction with his eyes open and at his own risk, as he was aware of the arrangement by which his mortgagor's power was limited. He could, therefore, claim no indulgence.
4. For these reasons we must reverse the decree of the District Judge and restore that of the Subordinate Judge. The appellants' costs in this and the Lower Appellate Court must be paid by respondents Nos. 1 to 21.