BACHAN SINGH Vs. ARJAN SINGH

JUDGEMENT

(1.) Brief facts leading to this appeal under clause 10 of the Letters Patent are as f allows :-

(2.) One of the points mainly contested before the learned Single Judge was whether the suit was competent, because of the dismissal of the first application under Section 6 of the Act and the failure of the appellants to challenge that order of dismissal under Section 12 of the Act within the period of limitation. The learned Single Judge, however, came to the conclusion that Section 12 of the Act provides that a party aggrieved by an order made under Sections 6 to 11 may institute a suit to establish his right in respect of the mortgage but subject to the result of such suit, if any, the order passed by the authorities under the Act would be conclusive and that, consequently, the present suit was a suit challenging this decision and as the same had been filed more than one year after the passing of the order in that application, the same was incompetent being barred by time.

(3.) Before us the learned counsel urged three points, first, that the present suit did not challenge the decision given in the first application, secondly, that, in any case, the suit filed by the respondents on 16th January, 1964, was a suit challenging the correctness of the order passed in the application under Section 4 of the Act and in that suit it was held that the mortgage still subsisted and, consequently, the present suit was competent and, thirdly, that the dismissal of the application in default of the presence of the mortgagors was not an adverse order which needs to be set aside under Section 12 of the Act.