ALI AHMAD KHAN Vs. HFBROWN

JUDGEMENT

(1.) The petitioners as plain-tiffs sued four defendants for redemption and the recovery of Its. 4,000 odd, being the arrears of rents and profits due to them under a zur-i-peshgi lease. The second and third defendants did not contest the suit. The first and fourth defendants were alleged to be assignees from the second and third defendants, or rather the first defendant was said to be an assignee from the second and third defendants and to have transferred his interest to the fourth defendant. The first and fourth defendants pleaded that they had nothing to do with the mortgage, but admitted that they had, by a subsequent private arrangement, been put in possession of two of the mortgaged villages.

(2.) After a keen contest, the Court below found that the statement of the first and fourth defendants was true; and in decreeing the suit against the 2nd and 3rd defendants ex parte, it directed that the rents and profits should be recovered from them alone, and that the 1st and 4th defendants should merely be required to yield up possession of the two villages occupied by them. This decree the petitioners did not appeal against. On the contrary, they accepted it and actually executed it by obtaining possession of the two villages from the 1st and 4th defendants.

(3.) The 2nd and 3rd defendants, however, moved to have the ex parte decree against them set aside, and the lower Court set it aside accordingly. The question whether it ought also to be set aside in so far as the 1st and 4th defendants were concerned, was very carefully considered by it, and it was deliberately held that it would be most inequitable, as the lower Court put it, to require those defendants "to fight the battle over again after their victory".