LAWS(PVC)-1930-4-98

TALIB ALI SHAH Vs. PIAREY LAL

Decided On April 16, 1930
TALIB ALI SHAH Appellant
V/S
PIAREY LAL Respondents

JUDGEMENT

(1.) This is an appeal by Talib Ali Shah defendant 20, arising out of a suit on the basis of a mortgage deed dated 12 May 1904, executed by the original owner of this property, Mahbub Ali Shah, in favour of the plaintiff Piarey Lal and his co- mortgagee Nanak Chand whose rights he has since acquired under a subsequent purchase. When the suit was originally instituted Talib Ali Shah was described as a major and an ex parte decree was obtained against him and the other defendants. When however the decree was put in execution he objected that he had all along been a minor and had not been properly represented. The execution Court acceded to this contention and allowed the objection. The plaintiff Piarey Lal than applied to the original Court under Section 151, Civil P.C., claiming that the suit should be restored and proceeded with after the appointment of a guardian ad litem of Talib Ali Shah. The Court acceded to this request and the suit was tried on the merits and has been decreed. Talib Ali Shah now appeals.

(2.) In order to understand the pleas raised in defence it is necessary to briefly state the previous history of this property. Prior to the mortgage in question there was a mortgage deed executed by Mahbub Ali on 6 February 1904, in favour of his wife Begam Sultan in part satisfaction of her dower debt. Mahbub Ali was also indebted to a creditor Lala Gopal Rai who obtained a simple money decree against him in execution of which he put up Barwana Mahmudpur or sale which was purchased at auction by Begam Sultan for Rs. 575. Subsequently Begam Sultan executed a sale deed dated 19 December 1906 of this property along with 5 biswas of mahal Sardarnagar which she had purchased at another auction in favour of Talib Ali Shah.

(3.) The defence of Talib Ali Shah is two fold. In the first place he asserted that under the purchase from Begam Sultan he had acquired her prior mortgagee rights and that therefore the sale should be subject to such rights. In the second place he pleaded that inasmuch as no guardian ad litem had been appointed for him the suit could not be deemed to have been instituted on the date when he was impleaded as a major.