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Allahabad High Court
Piari Lal vs Nand Ram And Ors. on 14 November, 1908
Equivalent citations: (1909) ILR 31 All 19
Bench: J Stanley, Kt., Banerji


JUDGMENT

John Stanley, Kt., C.J. and Banerji, J.

1. This appeal arises out of a suit for sale of mortgaged property. It was dismissed under the following circumstances as barred by Section 13 of the Code of Civil Procedure. It appears that in the year 1880 the predecessors in title of some of the defendants and the other defendants executed a mortgage in favour of the predecessor of the plaintiff. A suit was brought upon this mortgage on the 21st of September 1882, in which a sale of the mortgaged property was claimed. The suit was compromised on the terms that a simple money decree only should be passed in favour of the plaintiffs and such, a decree was passed on the 27th of November 1882. The events which happened subsequent to the date of this compromise it is unnecessary for the purposes of the decision of this appeal to detail, suffice it to say that the amount due to the plaintiff on food of the compromise was not satisfied, or at least fully satisfied. Thereupon the suit out of which this appeal has arisen was instituted for sale of the mortgaged property. The first Court decreed the claim, but upon appeal the lower appellate Court dismissed it, on the ground that it was barred by Section 13 (explanation III) of the Code of Civil Procedure. In that explanation it is laid down that any relief claimed in a plaint which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. In view of this section the claim of the plaintiff in the first suit for sale of the mortgaged property must be deemed to have been refused, and therefore his right as mortgagee to have a sale of the mortgaged property became barred as a matter r”a judicata. In view of this section it is impossible to hold that a fresh suit for sale can be maintained, and therefore we think that the lower appellate Court rightly dismissed the plaintiff’s suit. This view is supported by the decision pf the Calcutta High Court in the case of Shibu Bera v. Chandra Mohan Janat (1906) I.L.R. 33 Calc. 849 the facts of which are admittedly on all fours with the facts of the present case. Our decision is in no way in conflict with the decision of Benches of this Court in the cases of Bhola Nath v. Muhammad Sadiq (1903) I.L.R. 26 All. 223 and Madho Prasad v. Baij Nath Weekly Notes 1905 p. 152. In both of these cases it will be found that in the suits originally instituted by the plaintiffs no claim was put forward for sale of the mortgaged property; the plaintiffs contented themselves with applying for simple money decrees. Section 13 therefore had no application. We therefore dismiss the appeal with costs.


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