BHUP SINGH Vs. RAM DIN

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge of Shahjahanpur remanding a case under the provisions of Section 562 of the Code of Civil Procedure.

(2.) The plaintiffs, who are respondents here, brought a suit against the appellant in a Munsif's Court for redemption of a usufructuary mortgage. They obtained a decree and were put in possession of the mortgaged property on the 13 of March 1906. They subsequently brought the suit out of which this appeal arises to recover from the appellant Rs. 5,000 on account of surplus collections alleged to have been received since 1874) when the mortgage debt was discharged by the usufruct of the property. The - suit was filed in the Court of the Subordinate Judge. It was dismissed by him on the ground that it was barred by the provisions of Section 43 of the Civil P. C.. On appeal by the plaintiffs the learned District Judge held that the suit was not barred and remanded it for decision on the merits. It is against that order of remand that the defendant has preferred this appeal.

(3.) In my opinion the appeal must be allowed. The learned District Judge has written a careful judgment, but I cannot agree with the conclusion at which he has arrived. He says: "The cause of action on the 17 of December 1904, the date of the institution of the case in the Munsif's court, was the retention of the property. The whole claim which the plaintiff was entitled to make then on that cause of action was to say: Give me possession of the property ." This is a view which I cannot accept.