NAUBAT LAL Vs. B MAHADEO PRASAD SINGH

JUDGEMENT

(1.) This is a defendants appeal under the following circumstances:

(2.) The suit was for possession of certain zamindari property or in the alternative for recovery of a sum of Rs. 8,548-0-6 against a number of persons. The plaintiffs alleged that on 11 September 1894 the ancestors of defendants 1 to 9, who are appellants before us mortgaged 3 as.-1.33 pies in the village Chandpur to one Gokul Prasad. Gokul Prasad obtained a decree on foot of this mortgage and an auction sale in execution of that decree took place on 25 June 1919, when Gokul Prasad brought the property mortgaged. The plaintiffs who were purchasers under money decrees and mortgage decrees of 1a.-7.33 pies in the village, deposited the whole of the decretal amount which was Rs. 4519-12-4 on 17 July 1919 under Order 21, Rule 89, Civil P.C., and got the sale of 25 June 1919 set aside. They in the present suit claim possession over the property which is not in their possession and hypothecated in the deed of 11 September 1874 or the amount of money paid therein together with interest at 12 per cent from the date of payment. Defendants 1 to 9 pleaded that the plaintiffs suit was barred by limitation and that the plaintiffs knew of the prior charge and hence they were liable to pay the same and the defendants were not bound to pay it. They also pleaded that the interest was excessive. The learned Subordinate Judge repelled the contention that the claim was barred by limitation and holding that as defendants 1 to 9 were heirs of the original mortgagors, they could not raise the question of rateable contribution and granted a decree to the plaintiffs for the amount deposited together with interest at 6 per cent, holding that sum was a charge on the property in the hands of the defendants.

(3.) The defendants have come in appeal in this Court and it is contended by the learned advocate for the appellants that the plaintiffs claim was barred by Article 61, Lim. Act, and that the property in the hands of the appellants was liable rateably to the claim of the plaintiffs.