DUNI CHAND TARA CHAND Vs. RAM DITTA MALL

JUDGEMENT

(1.) One Sant Ram of Amritsar mortgaged a house and four shops in favour of Gurdit Singh on 29 June 1926.

(2.) On 5 December 1931 Gurdit Singh brought a suit for the recovery of his debt by the sale of the mortgaged property. Sant Ram died during the pendency of the suit. His four minor sons including Duni Chand and Tara Chand were brought on record as their deceased father's legal representatives. After having obtained a final decree Gurdit Singh started execution proceedings on 21 April 1932. On this, Dina Nath, who is the maternal uncle of the minor sons of Sant Ram, instituted a suit against Gurdit Singh for having the mortgage decree set aside. The suit was dismissed and so was the appeal from the order of the trial Court. On 15 November 1933 the mortgaged property was sold by the executing Court in favour of Ramditta Mal. The sale was confirmed on 15 December 1933 and the auction purchaser obtained possession of the property sometime in 1934. Duni Chand and Tara Chand, two of the sons of Sant Ram brought the present suit on 11 June 1946 for possession of the property which was the subject-matter of the mortgage, on the allegations that the property was ancestral, that the mortgage was without consideration and amounted to a fictitious transaction. They did not seek any definite relief regarding the mortgage decree and the auction sale in favour of Ramditta Mal but it was mentioned in the plaint that since their mother who had been appointed their guardian ad litem and also the other guardian ad litem who was appointed in place of their mother when she failed to appear in Court, were guilty of gross negligence neither the decree nor the sale was binding upon them.

(3.) It was further mentioned in the plaint that Dina Nath who brought the previous suit as a next friend of the plaintiffs and their other two brothers had also been guilty of gross negligence in the conduct of that case and consequently the decision of that case too did not affect the plaintiffs rights. The suit was resisted by both Ramditta Mal and Gurdit Singh on several grounds, the most important of which were that it was barred by time and the decree in Dina Nath's case operated as res judicata. The trial Sub-Judge found against the plaintiffs on the questions of limitation and res judicata and dismissed their suit. The plaintiffs have now applied to this Court for permission to prefer an appeal in forma pauperis. The respondents opposed the application and it is contended on their behalf that conditions of Rule 1 of Order 44, Civil P.C., are not satisfied, inasmuch as that the decree appealed from is not contrary to law, nor can it be said that it is otherwise erroneous or unjust.