DALJIT SINGH Vs. HARKISHAN LAL SAH AND BROTHERS

JUDGEMENT

(1.) The appellant Daljit Singh was defendant 4 in the suit which was for the enforcement of a simple mortgage dated 27 October 1922 executed by defendants 1 to 3 in lieu of an advance of Rs. 922-8-0 in favour of the plaintiff firm. The mortgagors, defendants 1 to 3, did not contest the suit. The appellant contested it on various grounds. The Courts below have decreed it and have provided in the decree that it shall be executed against the mortgagors and the mortgaged property in the first instance and that if the whole of the amount due to the plaintiff firm is not realized by sale of the mortgaged property, whatever amount remains due after the sale of the mortgaged property shall be recovered from the property of Daljit Singh, defendant, to the extent of Rs. 922-8-0.

(2.) As stated above, the mortgage deed in suit was executed on 27 October 1922. On the same day Tilok Singh, father of the appellant, executed a deed in favour of the mortgagee in these terms: I, Tilok Singh...execute this surety deed in favour of you, Lala Harkishan Lal Sah and brothers...to the effect that since Har Singh...had mortgaged with you...together with house and all his rights and interest, if your money is not realized from the said mortgaged property...then you shall be entitled to realize your money, Rs. 922 8-0, from my person and property and I shall have no objection to it. I have therefore executed this deed of surety in order that it may serve as evidence.

(3.) No specific property belonging to Tilok Singh was anywhere mentioned in this deed and there is nothing to show that any charge was created on any property. This deed was registered. Tilok Singh is dead and his son, the appellant, has been impleaded by the plaintiff as a defendant on the allegation that he is liable to fulfil the obligation incurred by his father. The mortgage deed fixed a term of one year for payment. The suit was instituted on 30 October 1935. The Courts were closed from 27 to 29 October 1935 on account of Diwali, and so the suit was within 12 years from 27 October 1923 when the period of one year fixed in the mortgage deed for payment expired.