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1906 DIGILAW 105 (CAL)

Aghore Nath Banerjee v. Deb Narain Guin

1906-05-14

body1906
JUDGMENT Rampini, J. - The Plaintiffs are the mortgagees of the lands in dispute, under a mortgage deed, dated the 26th January 1898. They brought a suit (No. 349 of 1898), for the sale of the mortgaged properties, against one Madhab Chandra Koyal, the mortgagor, and Haladhar Sardar, the purchaser of a portion of the properties, obtained a decree, caused the sale of the properties, and purchased the properties themselves on the 12th August 1899. They took symbolical possession from the Court on the 11th March 1901. There was then a proceeding under sec. 335, C. P. C., between the Plaintiffs and the Defendants; and the Plaintiffs lost that case on the 15th June 1901. The Plaintiffs now sue for possession of the land and make an alternative prayer for sale, under the mortgage deed, to realize the amount due to them. 2. The lower Appellate Court has found (1) that the Plaintiffs are not entitled to sue for possession of the lands, but must sue for Bale of the land; and (2) that the Plaintiffs cannot obtain a decree for Bale of the lands, allowing the Defendants the right of redemption, because their suit is barred, as brought more than 12 years from the date of the bond and more than 12 years after having obtained notice of the purchase of the Defendants. The pleader for the Appellants admits that if the Plaintiffs' remedy lies in a suit for sale of the lands their suit is barred by limitation. But he contends that their only remedy is not in a suit for sale but in a suit for possession. 3. I think, however, that the judgment of the lower Appellate Court is correct, and that the case is concluded by the rulings in the cases of Hargu Lal Singh v. Gobind Rai I. L. R. 19 All. 541 (1897) and Madan Lal v. Bhagwan Das I. L. R. 21 All. 235 (1897) upon which the lower Appellate Court has relied. I would, therefore, dismiss this appeal with costs. Woodroffe, J. I agree.