SUNDER LAL Vs. KUNWAR HARI HAR SAHAI

JUDGEMENT

(1.) This is a defendant's first appeal arising out of a suit for a declaration. The facts which have given rise to this litigation between the parties can briefly be stated as follows : Bhagwati Sahai, Kalka Sahai and Bhawani Sahai, three brothers, executed a mortgage deed in favour of Sunder Lal defendant on 29th September 1931 for a sum of Rs. 2,260. In 1927 Sunder Lal instituted Suit No. 80 of that year to recover the amount due on the basis of the mortgage deed in his favour. The sons of the three mortgagors with the exception of Hari Har Sahai, plaintiff 1, son of Kalka Sahai, were also made defendants to the suit. Three sons of Kalka Sahai were minors and he himself was appointed by the Court to act as their guardian.ad-litem. Similarly Bhawani Sahai was appointed guardian-ad-litem of his minor son and one Babu Ram was appointed guardian-ad-litem of Bhagwati Sahai's minor sons. The Court trying the suit decreed the suit of Sunder Lal on 15 October 1929. The judgment is printed at pp. 30 and 31. Sunder Lal, decree- holder, in execution of his mortgage decree, put to sale the properties which were mortgaged under the terms of the deed referred to above. The minor sons of the three mortgagors objected to the attachment on the ground that the mortgage deed was not binding upon them and the property in suit which was joint family estate was not liable for payment of the amount for which a decree had been passed against them.

(2.) The learned Civil Judge who tried the case came to the conclusion that, as the interests of the persons appointed guardians-ad-litem were adverse to the interests of the minors, the decree passed in the former case was not binding upon the minors. There was an issue framed in. the case as to whether or not the mortgage deed of 29 September 1921 was executed for legal necessity, but the learned Judge of the Court below considered that it was not necessary in view of his finding; on issue No. 4 to give any finding on that, issue. He decreed the suit of the plaintiffs and granted them a declaration to the effect that the property in suit is not liable to sale in execution of decree No. 80 of 1927 of the Court of the Civil Judge of Shahjahanpur against plaintiffs 2 to 7. The present appeal has been preferred by the defendant against the decree passed by the Court below.

(3.) It may here be mentioned that after an appeal to this Court had been preferred by the defendant, he made an application to the Court below which purports to be one under Section 151, Civil P.C. The prayer was that the mortgage suit should be revived as the decree passed by the learned Judge in suit instituted by the minors was defective. The lower Court agreed with, the contention raised by the defendant-appellant and it therefore passed an order on 23 April 1934 allowing the application of the defendant and directed that the case should be reheard. Against that order the opposite party have preferred a revision.