SAYAMALI MOLLA Vs. ANISUDDIN MOLLA

JUDGEMENT

(1.) The facts of the ease giving rise to this reference are these: One Bainuddin mortgaged a plot of land to defendant 1 in 1904. In 1908 he again mortgaged this piece of land with another plot (No. 2 in the schedule of the plaint) to the plaintiff. Defendant 1 (who will be referred to as the defendant) brought his suit on his mortgage in 1911 without impleading the plaintiff and obtained a decree for sale against the mortgagor alone on 30 November 1911. Plaintiff brought a suit to enforce his mortgage in 1915. He made the present defendant a defendant in the suit along with the mortgagor and a transferee from him. The defendant set up his prior mortgage and plaintiff's suit as against him was dismissed as the plaintiff did not ask for any decree against him. Plaintiff obtained the usual decree for sale as against the other defendants in that suit on 8 May 1915. Defendant in this case put the property mortgaged to him to sale in execution of his mortgage decree and purchased it himself on 15 August 1916, and obtained possession.

(2.) Plaintiff afterwards executed his decree and purchased both the mortgaged properties on 19 November 1920 but obtained possession only of plot 2. Plaintiff brought the suit out of which the appeal to this Court arose on 17 July 1925 for redemption of plot 1 of the plaint on payment of the mortgage money due on the mortgage of defendant and for possession. Defendant 2 is a brother of defendant 1 and defendant 3 is said to be a tenant under the other defendants. These two may be left out of consideration.

(3.) Various points were raised in defence by the written statement of the first two defendants. Defendant 3 did not appear. All the Courts have thrown out the suit on the ground that it is barred by limitation, and this question has caused the reference to the Full Bench.