(Mallampudi) Narayya and Others vs (Mittapalli) Sarayya and Another

Defendant 1 in 1908 gave a mortgage to one Jagamma, who assigned it to plaintiff 1''s natural father. The amount secured by the mortgage was

Rs. 1,000 and it was repayable in ten annual instalments of Rs. 100 each, together with interest at 12 per cent. There was however a clause in the

deed, which provided that, if two successive instalments remained unpaid, the mortgagor should

without having regard to the future instalments, pay all the amount of principal and interest duo in one instalment.

It is over the effect of this clause that controversy has arisen. Two successive instalments fell into arrear and the assignee mortgagee sued and

obtained a decree for their recovery. This was in the Court of the Additional District Munsif, Masulipatam. In 1923 on 24th June his successor-in-

title the present plaintiff 1, brought a suit to recover the whole balance due from the mortgagor and his sons. He was met with the plea that his suit

was barred by Rule 2, Order 2, Civil P.C. The cause of action, it was pleaded, arose when the first two instalments fell into arrear and he should

have brought a suit for the whole amount due and not for two instalments alone. This plea found favour with the District Munsif, who, following two

decisions of the Judicial Committee, dismissed the suit. The Subordinate Judge on appeal reversed his judgment and decreed the suit, pointing out

that the two decisions relied on were in cases where suits had been filed after the entire mortgage money had fallen due. The same plea is now

raised in second appeal. Prima facie, and apart from authority, it would seem clear enough that in a case of this kind, the mortgagee has two

alternative courses open to him; either to enforce the penalty, which would be advantageous to himself or to stand on the original deed, which

would be rather to the advantage of the mortgagor. And if he elects to adopt the latter course, it cannot lie in the mouth of the mortgagor to meet

his suit on the mortgage with the objection that he is barred because he did not adopt the former. The leading case on the point in this Presidency is

Narna v. Ammani Amna [1916]39 Mad.981.

The question then raised was one of limitation Under Article 132, Lim. Act, but the rule laid down is equally applicable to the present plea of

bar by Rule 2, Order 2. What was laid down was this that a mortgagee is not bound to take advantage of a penal clause in the bond and that a suit

brought by him within 12 years from the date originally fixed for payment, though beyond 12 years from the date of the first default, was not barred

by limitation. The rule has been dissented from in several Allahabad cases, beginning with Gaya Din and Others Vs. Jhuman Lal and Others, and in

a Bombay case, Srinivasa v, Chanbasapa A.I.R.1923 Bom.201, but has been generally followed in Madras till recently. In Mukyaprana Bhatta v.

Kelu Nambiyar A.I.R.1928 Mad.705, Ramesam and Jackson, JJ., held in respect of a bond very closely resembling that now under consideration,

that the mortgagee having sued to recover the first four instalments in arrear, was barred by Rule 2, Order 2 from suing to recover further

instalments in arrear. Ramesam, J., who delivered the leading judgment, expressed it as his opinion that the Madras view was wrong and the

Allahabad and Bombay view was right. At the same time, he thought that in certain cases where the deeds contained words like when required"" or

when you require"" or if you choose,"" it would be easy to hold that they did give an option to the mortgagees. As to that we agree with

Venkatasubba Rao, J., in the next cast to be cited that that is a distinction without any real difference; the option is there, whether it is expressed or

not. The case in question is Rego v. Phillip Taure A.I.R.1929 Mad.371. The Judges composing the Bench, Ramesam and Venkatasubba Rao, JJ.,

arrived at the same result, but by absolutely different processes of reasoning. It was the case of a mortgage which was to be discharged in four

instalments, with a proviso that, if any instalment fell into arrear, the whole amount became recoverable. There were other provisions, but that is the

general purport of the deed. The mortgagor defaulted on the first instalment and the mortgagee sued and got a decree for the amount due on it.

Later he sued to recover the other instalments and was met with the plea that his suit was barred by Rule 2, Order 2, Civil P.C. Ramesam, J.,

reviewed all the decisions and again expressed dissent from Narna v. Ammani Amma [1916]39 Mad.981.

He, was able however, to find for the appellant on another ground. Venkatasubba Rao, J., agreed in allowing the appeal, but he did so on the

ground that Narna v. Ammani Amma [1916]39 Mad.981 had been correctly decided. It was on account of this difference in opinion that the

present appeal was referred to a Bench. We may say at once that, in our judgment, Venkatasubba Rao, J., came to the right conclusion and we

concur entirely in his observations on pp.591 and 592 (of 56 M.L.J.)

The matter ""he said"" may be put somewhat thus: The plaintiff has an option to enforce the clause or not at his pleasure. It is open to him to avail

himself of that option or to waive it and there is a third alternative, namely, it is equally open to him not to make election. He may by act or word

show that he elects to avail himself of the benefit, and then he determines his election for ever. He may similarly indicate that he waives the option,

and in that case again, he cannot afterwards change his mind. Then there is the third alternative, where he makes no election, retaining the right

either to exercise the power or to waive it and this he may retain till the suit is filed. Construing Order 2, Rule 2 in the light of this principle, it cannot

be said of a person, that on the date of the first suit he became entitled to sue for the whole amount, unless he had previously elected by some

word or act to take advantage of the default clause. If he had previously done nothing, that is, made no election, the act involved in bringing in the

first suit for a single installment amounts to a waiver on his part of the benefit reserved under that clause. If, again, after the default has occurred, he

keeps the question open and does nothing, but finally sues for the whole amount, the fact that he so sued, shows that he has waived the benefit

reserved by him under the contract.

He referred to two decisions of the Judicial Committee as tending to support his view. One of them, Pancham v. Ansar Hussain A.I.R.1926

P.C. 85, was pronounced in an appeal from a judgment of the Allahabad High Court reported in Pancham v. Ansar Hussain A.I.R.1921 All.296.

It is true that the observations relied on were made obiter, and that their Lordships of the Judicial Committee were careful to point out that they

were not deciding that the view of the Allahabad High Court was wrong, but it is, we think impossible to read what they said without feeling that

they entertained the gravest doubt as to the correctness of that view. To quote from p. 463 (of 48 All.)

applying certain previous decisions of that Court and in particular a Full Bench decision in Gaya Din and Others Vs. Jhuman Lal and Others, , the

High Court held that, under a clause in the above form, a single default on the part of the mortgagors without any act of election, cancellation or

other form of response or acceptance on the part of the mortgagees, and even, it would appear, against their desire operates eo instanti, to make

the money secured by the mortgage ""become due,"" so that all right of action in respect of the security is finally barred 12 years later. All this the

High Court held, notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as of

the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees. The decision also apparently proceeds upon

the view that the words of the English Limitation Act and the English decisions thereon apply without question to the words of Article 132, Lim.

Act, a conclusion which, as it seems to their Lordships, may involve and on the critical point when applied to such a proviso as the present, a large

assumption.

It is significant that in Narna v. Ammani Amma [1916] 39 Mad. 981 Seshagiri Ayyar and Napier, JJ., pointed out that some of the Indian

decisions seemed to have taken it for granted that the words of Article 75 should bo imported into Article 132, an assumption which they

condemned as unsound. We will refer to only one other Indian case Mukhdeo Singh v. Harakh Narayan Singh A.I.R.931 Pat.285, where the

Judges, following the course of decisions in that Province, held:

(A) that, where an instalment mortgage deed fixed the time by which the mortgage money and interest thereon were to be paid and a clause was

inserted, for the benefit of the mortgagee, that, if any of the instalments due were not paid in time, the mortgagee would be at liberty to call in the

entire money, the effect of such a stipulation was that he had successive or recurring causes of action and it was left to his option to avail himself of

any one of them.

(B) that the mortgagee''s option to call in his money at once or to stand on the original contract need not be express, but can be implied from the

terms of the bond.

In the result, we must follow the ruling in Narna v. Ammani Amma [1916] 39 Mad. 981 and the course of decisions in this Court and hold that,

in this case, the plaintiff''s suit was not barred by Rule 2, Order 2, Civil P.C. He was under no obligation to enforce the forfeiture; for no man is

obliged to enforce a forfeiture. The second appeal is dismissed with costs.