1. On the 26th September 1389, Musammat Tafa Koer executed a conveyance purporting to convey a certain property in the name of Lala Rajbansi Lal On the 17th May 1898 Lala Rajbansi Lal executed a mortgage of this property in favour of the plaintiff. But sometime after the execution of the mortgage, Mahant Darbishergir was recorded in the Collectorate as the proprietor of this property. On the 26th March 1907, Mahant Darbishergir executed a conveyance purporting to convey the property to Lala Bansdeo Narayan. The suit out of which this appeal arises is a suit brought upon the mortgage-bond executed by Lala Rajbansi Lal in May 1898. Lala Bansdeo Narain and Mahant Darbishergir were made parties to the suit on the allegation that the mortgagor Lala Rajbansi Lal, in order to defeat the plaintiff, fraudulently procured the registration of Mahant Darbisheigir's name as the proprietor of the mortgaged property and with the same object subsequently fraudulently procured a fictitious conveyance by Mahant Darbishergir in favour of Lala Bansdeo Narain. The suit was contested by Lala Bansdeo Narain alone. He contested the bona fides of the mortgage, alleged that he was the owner of the mortgaged property and that the mortgagee never, had had any title to the property. He also contested the allegation of payment which the plaintiff had made in order to save his claim from limitation. Lala Bansdeo Narain was defeated upon all these points and he now appeals to this Court.
2. The first ground taken in appeal is that inasmuch as Lala Bansdeo Narain claimed to have a title paramount to that of both the mortgagor and mortgagee, the suit should have been dismissed against him.
3. We cannot, however, find that any such prayer was ever made to either of the Courts below. It is manifest that the appellant invited the decision of the Court upon the question of his title to the mortgaged property. That being so, it is not open to him now to ask this Court to set aside the order directing him to pay the costs of the litigation which he invited. It has been held by this Court in Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425; 3 C.L.J. 205 that if a Court goes into such a question, the matter is not one of jurisdiction. As the case comes before us, it is at present merely a question of costs. As we have said, no ground has been made out as to why we should interfere with the order of the lower Court.
4. The second ground taken in appeal is somewhat inconsistent with the first. The contention is that the lower Court is wrong in coming to the finding that the payment of interest has been made in such a manner as to save limitation. If the first contention was sustainable that the suit should have been summarily dismissed as against the appellant then, of course it would not be open to us to go into this question. However, we may say that assuming that it is open to this Court to go into the matter, we find no ground of law on which we can interfere with the finding of the Subordinate Judge. The question involved was whether a sum of Rs. 66 had been paid by way of interest on the 11th May 1898. The finding that the payment was by way of interest has not been contested.
5. It has, however, been argued that the Subordinate Judge was wrong in holding that the payment had been made by an agent duly authorised in that behalf within the meaning of Section 20 of the Limitation Act. It appears that a sum of Rs. 186 was lying in deposit to the credit of the mortgagor and that this deposit was withdrawn by one Madan Behary Lal, who was at the time the Pleader of the mortgagor. There is evidence that Rs. 66 out of this sum was paid by the aforesaid Pleader to the mortgagee in discharge of the interest due upon the mortgage-bond. There is evidence also that the mortgagor was present when this payment was made. The learned Subordinate Judge adds that there were circumstances to show that the Pleader must have been authorised by the mortgagor to withdraw the deposit on her behalf and that the suit has not been contested by the mortgagor. From this circumstance, the Subordinate Judge has inferred that the Pleader was an agent duly authorised to make the payment on account of interest. There is no mistake of law in this conclusion.
6. The appeal is dismissed with costs.