HARDWARILAL, ETC. Vs. NARAIN DAS, ETC.

JUDGEMENT

(1.) ON 1 -4 -1926, Lala Ram, father of Hardwari Lal, Om Parkash and Ram Kishan Plaintiffs, mortgaged with possession the shops in suit for Rs. 3,000. Lala Ram, however, obtained a lease of the shops from the mortgagees. A decree for arrears of rent in a sum of Rs. 270 and for the eviction of Lala Ram was passed on 23 -1 -1930. In execution of that decree the equity of redemption of the mortgaged property was sold for Rs. 50 on 28 -6 -1931, and the auction -sale was confirmed on 3 -8 -1932.

(2.) HARDWARI Lal major, Om Parkash and Ram Kishen minors instituted the suit, out of which these proceedings have arisen, for declaration that the auction -sale in civil case No. 722 of 1929 was null and void and that the Plaintiffs' claim for redemption of the mortgaged property on payment of Rs. 3,000 may be decreed. Defendants resisted the suit inter alia on the ground that the suit was bad for misjoinder for causes of action. On the pleadings of the parties the trial Court fixed the following issue:

(3.) MR . Mittal, learned Counsel for the Plaintiffs -Petitioners, concedes that the cause of action for declaration arose from the auction -sale whereas the cause of action for redemption arose from the mortgage of the property in suit. In other words there are two causes of action which have been joined together in the suit out of which this revision has arisen. Mr. Mittal, however, points out that inasmuch as the trial Court has found that the suit does not fall within Rule 4 of Order 2 and falls within Rule 3(1) of Order 2 the order passed by the trial Court on 9 -2 -1948 comes within Section 115, Code of Civil Procedure.