SHUJAT ALI Vs. BHIKU

JUDGEMENT

(1.) This is an appeal against a decision of the District Judge of Sarun, dated the 11 of August 1898.

(2.) The suit out of which the appeal arises relates to certain mortgage transactions between the parties. The details of these mortgage transactions are set out in the judgments of the lower Appellate Court and the Court of first instance, and it is unnecessary for us to recapitulate them here. It is sufficient to say that the appellant before us is the defendant No. 1, and on his behalf it has been urged, first that the suit is barred by limitation; secondly, that the District Judge is wrong in saying that an attachment in the case of a mortgage decree is illegal and unnecessary; thirdly, that the lower Courts are wrong in finding that the plaintiffs, when they took the zurpeshgi of the 1 of August 1879 from the defendants Nos. 2 and 3 intended to keep alive the prior mortgages of 1864 and 1866, which the defendants Nos. 2 and 3 paid off with the money then received from the plaintiff; fourthly, that when the defendants Nos. 2 and 3 executed the zurpeshgi of 1879 in favour of the plaintiffs their equity of redemption was foreclosed.

(3.) In support of the first of these grounds the learned pleader for the appellant argues that the suit is barred under Art. 11 of the second schedule to Act XV of 1877, not only as regards present possession, but altogether. That article prescribes a period of one year's limitation for a suit brought "by a person against whom an order is passed under Sections 280, 281, 282 or 335 of the Civil P. C., to establish his rights to, or to the present possession of, the property comprised in the order." Now the pleader for the appellant contends that this article of "limitation precludes the plaintiffs suing in any way after the lapse of one year from the date of the order, in order to establish his right of any kind with regard to the property. We cannot take this view of the meaning of the article. It has been held that the plaintiffs right to present possession of the property is barred. But" the lower Courts are of opinion that the plaintiffs are entitled to sue to enforce their mortgage lien over the property comprised in the order under Section 335 of the Civil P. C. within twelve years, and it appears to us that this view is correct. The plaintiffs, when seeking to establish their mortgage lien over the property to recover their mortgage debt, are not seeking to establish a right to the property, but merely suing to recover a debt which is owing to them and as security for which they have got a charge upon the property.