Narayana Ayyar vs Venkataramana Ayyar and Others

In our judgment the period of limitation for a suit for sale under the instrument id question in the present case is that prescribed by Article 147 of

the second schedule to the Limitation Act.

In Ramachandra Rayaguru v. Modhu Padhi ILR 21 Mad. 326 Shephard, J., dealt with the case upon the supposition that the instrument then

before the Court was a charge not amounting to a mortgage and held that Article 132, which relates to suits to enforce by judicial sale payment of

money charged on Immovable property, applied.

In the present case it is quite clear that the instrument is a mortgage. In the case referred to, Subrahmania Ayyar, J., was of opinion that the

article applicable was Article 132, on the ground that the words ""by a mortgagee for foreclosure or sale in Article 147"" referred only to a suit for

foreclosure or sale in the alternative. We do not think this is the right construction of the article. For the reasons stated in the order of reference

which we substantially adopt, we think the article applies to a suit by a mortgagee whether the suit is one for foreclosure (see Sections 86 and 87

and paragraph 2 of Section 88 of the Transfer of Property Act), or one for sale (see paragraph 1 of Section 88 and Section 89 of the Transfer of

Property Act), and, in the former case, whether the prayer in the plaint is for foreclosure alone, or is coupled with a prayer in the alternative for

sale in lieu of a decree for foreclosure.

We do not agree with the view of the Calcutta High Court that Article 147 applies only in the case of an English mortgage, and we agree with.

the decisions of the Bombay and Allahabad High Courts, in the cases referred to in the order of reference.