Hari Swarup, J. - (1.) This is a defendant's appeal arising out of a suit for money on the basis of a mortgage of immovable property. Plaintiffs claimed that one Chheda Lal had mortgaged this property on 3-5-1949 in plaintiffs favour. The defendants were said to be the heirs of Chheda Lal and thus liable to pay the amount of the debt. The defence on the other hand was inter alia, that Chheda Lal had no interest in the property and transferred no rights in favour of the plaintiffs by mortgage executed by him. Their case was that Kadher Mal and Ram Chandra had obtained a decree against Makhan Lal (father of Chheda Lal) and in execution of the same the share of Makhan Lal had been sold and as such the title of Makhan Lal ceased to exist thereafter. The appellants are the sons of Ram Chandra and the other non-contesting respondents are the heirs of Kadher Mal. According to the defendants, they obtained possession on the basis of the sale certificate through court and Chheda Lal s/o Makhan Lal was left with no interest in the property.
(2.) The trial court decreed the plaintiffs suit and the lower appellate court has dismissed the appeal. The defendants have now come up in appeal to this court.
(3.) The lower appellate court and the trial court held , that the auction sale was held in year 1900, and the order of delivery of possession was passed in year 1907, but actual possession was not delivered, and Makhan Lal continued in possession of the property. They applied Art. 178 of the Limitation Act, 1877 and held that as three years had elapsed after the sale, and possession had not been obtained, the auction purchasers lost title in the property and the property continued to remain vested in Makhanlal and after his death it came to his son Chheda Lal The courts below have obviously erred in applying Art. 178 of the Limitation Act to the facts of the present case.;