MOHABUT SINGH Vs. UMAHIL FATIMA

JUDGEMENT

(1.) This was an action brought to enforce a mortgage security. The defendant No. 15 alleged that the incumbrance which the plaintiff's sought to enforce in this action had been annulled by proceedings taken under Section 167 of the Bengal Tenancy Act,

(2.) The real question that has been argued before us on appeal is whether the application which has to be made to the Collector under that section was made to the proper officer, and whether the notice was duly issued by the officer by whom it has to be issued under the provisions of the section,

(3.) In the Court of first instance a question arose as to whether, the defendant No. 5 was out of time in the proceedings which he took to annul the incumbrance, and it was found as a fact by the Munsif that neither the defendant No. 4, who is the assignor, nor the defendant No. 5, who is his assignee, was served with notice of the incumbrance until served with the summons in the suit which has given rise to this appeal, and that therefore the defendant No. 5 was within the time prescribed by the statute.