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TMI Blog1923 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... share. One third of this belonged to two persons named Ambica Singh and Jagdam Singh the remainder being held by other co-sharers with whom we are not concerned. In 1895 the two persons named granted a zarpeshgi mortgage of their one third share to certain persons who are now represented by the defendants 1 to 9 and they entered into possession. The plaintiff subsequently purchased the I whole proprietary interest in the 2 annas 6 pies patti including the one third share the subject of the mortgage. In 1918 the plaintiff brought the present suit seeking to redeem the mortgage and obtain possession of the property upon paying the sum found due on taking an account. In addition to the zarpeshgidars certain other persons now the defendants 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also found with regard to the fifth issue that the tenant defendants had no rights in the lands claimed by them and he decided the issue against them. 4. The tenant defendants appealed to the District Judge who dismissed the appeal. He was of opinion that the tenant defendants were properly impleaded under the provisions of Order 34 Rule 1 of the Civil Procedure Code as persons having an interest or claiming to have an interest in the mortgaged security. He was further of opinion that the plaintiff was right in making the tenant defendants parties thus avoiding multiplicity of suits and that the trial Court was competent to decide the issue. On the merits he agreed with the conclusions arrived at by the trial Court. 5. From this decision a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put in possession of the mortgaged property. Although it is, as a general rule, desirable in mortgage suits to exclude all issues between the parties except those immediately concerned with the mortgage suit itself, 1 do not think that it can for a moment be doubted that the Court may, in certain cases, if it should think fit, allow other issues to be determined in such a suit even if they should depend upon separate causes of action and, in fact it seems to me quite clear on reading Order 2 Rule 4 that the Court may, in proper cases, grant leave for that to be done. In the present case I cannot help thinking that if leave had been specifically asked fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the discretion of the Court and although, as I have said, no formal request was made for the leave of the Court nevertheless where both parties are at arms length, where both parties are setting up varying titles to the mortgaged property, one claiming to be in possession and the other claiming that he has no right or title to be there, it seems to me that it is just the sort of case in which the Court might well grant leave and if the parties raise issues, such as that which were raised in the present case and the Court acquiesces in that course and allows those issues to be tried, I think it may well be said that the issues were raised with the leave of the Court. But assuming even that there was some irregularity in allowing the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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