Gaya Prasad v. Chotoo — 1914 DIGILAW 280 (ALL)

JUDGMENT : 1. This appeal arises out of a suit brought to enforce a mortgage. It appears that one Alopi executed a deed of mortgage in respect of a house on 25th June 1888 in favour of Sham Lal and Gaya Prasad. After the death of the mortgagor and one of the mortgagees, viz., Sham Lal, the surviving mortgagee, Gaya Prasad, instituted a suit in the Court of the Munsif of Allahabad on 29th May 1909 to recover the mortgage money by sale of the mortgaged house. He joined with him his sons as co-plaintiffs on the allegation that they were members with him of a joint undivided Hindu family. The claim was brought against the heirs of Alopi and some transferees from the latter. The claim was resisted on the ground among others that Alopi did not execute the mortgage deed in suit nor, did any consideration pass on it. On 2nd August 1909 the learned Munsif dismissed the suit. The plaintiffs preferred an appeal to the District Judge who remanded the case on 29th April 1910. The defendants appealed to this Court from the order of remand. They were successful in their appeal and the order of the first Court was restored. The judgment of this Court was delivered on 4th November 1911, On 23rd February 1912 one Babu Lal purchased the house in question from Mt. Ram Kali. In April 1912 the plaintiffs filed an application for a review of the judgment of the Bench of this Court which had dismissed their claim on 4th November 1911, They contended that the Court should have set aside the order of remand if it was erroneous, but should not have dismissed the plaintiffs' claim and restored the decree of the first Court. 2. On 4th June 1912 the application of the plaintiffs was accepted and the decree of this Court dated 4th November 1911 was modified. It was held that the order of remand made by the District Judga on 29th April 1910 could not be sustained, and it was accordingly set aside. The case was remanded to the District Judge for disposal according to law. It should be observed here Babu Lal was brought on the record as respondent in the casa during the pendency of the application for review. The case was remanded to the District Judge for disposal according to law. It should be observed here Babu Lal was brought on the record as respondent in the casa during the pendency of the application for review. The learned District Judge disposed of the appeal first by a judgment dated 7th December 1912, by which he decreed the claim of the plaintiff Subsequently Babu Lal appeared before the District Judge and said that no notice of the hearing of the appeal was sent to or served upon him and the decree made in the appeal should not be held to be binding upon him. 3. The learned District Judge found that by some mistake notice had not been sent to Babu Lal and re-heard the appeal against him. He wrote his second judgment on 12th February 1913 and came to the conclusion, that the passing of consideration on the mortgage in suit had not been proved and he therefore dismissed the claim. The plaintiffs preferred an appeal to this Court on 24th May 1913. They did not implead Babu Lal as a respondent in the appeal. About two and half months afterwards an application, supported by an affidavit, was filed on behalf of the plaintiffs asking to have the name of Babu Lal brought on the record among the respondents, on the ground that his name had been left out by an oversight. The application was allowed by a learned Judge of this Court subject to any objections that may be taken by Babu Lal at the hearing of the appeal. 4. Babu Lal accordingly takes a preliminary objection to the appeal against him on the ground that so far as he is concerned, the appeal is barred by limitation. On the other hand the contention for the plaintiffs-appellants is that the omission of the name of Babu Lal from the memorandum of appeal was due to an oversight on the part of the clerk of Mr. Wallach and under Section 5 of the Lim. Act, the period should be extended against Babu Lal. In support of this contention the learned counsel for the plaintiffs-appellants relies on Jamna v. Irahim, [1888] A.W.N. 58 and Noothi Subbarayadu v. Dara Lingayya Garu Suryapracharalingarn Garu, [1908] 18 M.L.J. 461.. Wallach and under Section 5 of the Lim. Act, the period should be extended against Babu Lal. In support of this contention the learned counsel for the plaintiffs-appellants relies on Jamna v. Irahim, [1888] A.W.N. 58 and Noothi Subbarayadu v. Dara Lingayya Garu Suryapracharalingarn Garu, [1908] 18 M.L.J. 461.. On the other hand the learned counsel for Babu Lal cites the case of Corporation of the Town of Calcutta v. Anderson, [1884] 10 Cal. 445. All that the Calcutta case lays down is that sufficient cause must be shown to the satisfaction of the Court before the provisions of Section 5 of the Lim. Act, can be applied. This proposition of law cannot be disputed. On the other hand the Allahabad and Madras cases show that under circumstances similar to those of the present case Section 5 of the Lim. Act was applied. I think that the affidavit on behalf of the plaintiffs-appellants shows clearly that the omission of the name of Babu Lal from the appeal was due to a bona fide mistake. Under Section 5 of the Lim. Act, I extend the period in favour of the plaintiffs-appellants. 5. How as to the merits of the appeal: it is contended on behalf of the plaintiffs-appellants that the learned Judge under a misapprehension of law came to the conclusion that the recital as to the passing of consideration contained in the deed of mortgage was no evidence against Babu Lal, the purchaser of the property. It is further said that the learned Judge ignored the evidence on the point in the case. It appears that the learned Judge relied upon Manohar Singh v. Sumirta Kuar, [1895] 17 All. 428 : (1895) A.W.N. 93. as to the effect of the recital made in the deed about the passing of consideration. In Behari Lal v. Makhdum Baksh [1913] 35 All. 194 : 18 I.C. 744. it has been held recently by a Bench of this Court that the admission of the receipt of consideration contained in a mortgage deed is admissible in evidence against a purchaser by private treaty. In the last-mentioned case the case of Manohar Singh v. Sumirta Kuar, [1897] A.W.N. 90. was considered but not followed. The learned Judge of the Court below was therefore in error in holding that the admission of the receipt of consideration contained in the mortgage deed was not admissible in evidence. In the last-mentioned case the case of Manohar Singh v. Sumirta Kuar, [1897] A.W.N. 90. was considered but not followed. The learned Judge of the Court below was therefore in error in holding that the admission of the receipt of consideration contained in the mortgage deed was not admissible in evidence. He also ignored the direct evidence in the case. In his first judgment on the 7th December 1912 he referred to the depositions of Gaya Prasad and Mahabir Prasad and believed them as to the passing of consideration for the bond in suit, but he made no reference to them in his second judgment. Moreover, he says that the deed in suit was given in lieu of a prior deed, which the plaintiffs have not produced nor accounted for its non-production. As a matter of fact the prior deed is on the record. The plaintiffs-appellants contend that the case should be remanded to the Court below under O. 41, R. 25 of the CPC, for disposal according to law. I think that is the proper course to adopt in the present case: vide Yarali v. Hashmat Bibi (6). 6. I therefore remand the case to the lower appellate Court with reference to the remarks made above for the trial of the issue, whether consideration passed on the mortgage-deed in suit. The learned Judge will decide this issue upon the evidence already on the record. Ten days will be allowed for objections on return of the findings.