SHIV SHIV TEWARI Vs. GANESH PRASAD MISRA

JUDGEMENT

(1.) THIS appeal by the plaintiff arises out of a suit for recovery of Rs. 600/- from the defendants by sale of the mortgaged property. The plaintiff alleged that the defendants had obtained a loan of Rs. 600/- from him and had executed a deed of usufructuary mortgage mortgaging with possession certain properties detailed and described in the plaint. The mortgage deed was executed on 3-4-1942 and the time fixed for payment under the mortgage was five years. Since the defendants failed to repay the loan a suit for the said relief was filed.

(2.) THE suit was resisted by the defendants on a number of grounds, one of them being that the suit was barred by time. THE trial court held that the suit was filed within limitation, it also accepted the contentions raised by the plaintiff and repelled the allegations made by the defendants. THE suit was accordingly decreed for Rs. 600 against the defendants and a preliminary decree was ordered to be passed accordingly.

(3.) IN order to invoke the provisions of S. 14 of the said Act the following conditions have, therefore, to be satisfied :- (i) The plaintiff must be shown to have prosecuted another civil proceeding in another Court against the defendant with due diligence. (ii) The proceedings should relate to the same matter in issue. (iii) The proceeding in the former Court must have been prosecuted in good faith. (iv) The former Court was unable to entertain the suit for want of jurisdiction or other cause of the like nature.