NAMAR ALI Vs. KHALWAN GOALA AND ORS.

JUDGEMENT

(1.) THE Plaintiff -Appellant in this case instituted a suit for redemption in respect of a mortgage bond dated 12. 4. 35 covering an area of 3B 12K and 13 Chataks of land comprised in Dag Nos. 20 and 21 and covered by pattas 8 and 7 respectively of the Didarkush No. 2. The bond in question was executed by two persons Annamoni Devi, widow of one Anchit Ram Das who was Defendant No. 2 in the action and one Akru Ram Das. Akru Ram Das died before the institution of the suit and his son Aswini Kumar Das and his widow have been made parties to the suit as Defendants 3 (ka) and 3 (kha). Now the mortgage was a usufructuary mortgage to secure payment of a loan of, Rs. 65/ - only ; but it appears that the mortgagee gave a lease to Aswini Kumar Das the Defendant No. 3 of the mortgaged lands and this Defendant continued to be in possession of the lands.

(2.) THE judgment of the learned Subordinate Judge shows that the plea of limitation was the main plea taken before him. The learned Subordinate Judge thought that the order in the 145 proceedings being clearly against Manomohan who was the first party, to that proceeding, he was bound to institute a suit within the period of limitation provided by Article 47 of the Limitation Act. Manomohan failed to do so and therefore his right, title and interest in the lands whatever they were extinguished by the operation of section 28 of the Limitation Act.