Sakkarai Ambalagaran vs Sundilapathi alias Subramanya Chetty

This is a suit for sale by a mortgagee which was decreed on September 4th, 1909. On appeal before the District Judge, it was argued that the

document, which is dated August 26th, 1873, constituted a charge only. The Court held it to be a simple mortgage. The appellant before this Court

accepts that finding but contends that, being executed prior to the passing of the Limitation Act, XV of 1877, it is governed by the Limitation Act

of 1871 and that, as this earlier Act contained no Article corresponding to Article 147 of the Act of 1877, the only Article applicable was Article

132, which allows a period of twelve years for money charged upon Immovable property and also that, being a simple mortgage executed prior to

the passing of the Transfer of Property Act, IV of 1882, the mortgagee had no power of sale as incident to the contract. He relied on the cases

reported in Aliba v. Nanu 9 M.k 218; Rangasami v. Muttukumarappa 10 M.k 509 and the Full Bench decision of Ramachandra Rayaguru v.

Modhu Padhi 21 M.k 326. The respondent contended that Ramachandra Rayaguru v. Modhu Padhi 21 M.k 326 was dissented from in Narayana

Ayyar v. Venkataramana Ayyar 25 M.k 220 and relied on Balasubramania Nadar v. Sivaguru Asari 21 M.L.J. 562 With regard to the first

contention, it is clearly unsustainable as the mortgage was executed in 1873 and was not barred when Act XV of 1877 came into operation.

Section 4, read with Section 2, Clause 1, makes it clear that suits on such documents get the benefit of any extention of the period of limitation,

though a right to sue already barred cannot be revived. With regard to the second contention, we do not think it is necessary to discuss the

question how far the cases are reconcilable. The question as to the Article applicable to simple mortgages has been before the Privy Council in the

case reported as Vasudeva Muduliar v. Srinivasa Pillai 17 M.L.J. 444 when both the Full Bench cases of Ramachandra Rayaguru v. Modhu Padhi

21 M.k 326 and Narayana Ayyar v. Venkataramana Aayyar 25 M.k 220 were considered and their Lordships decided that Article 147 was

limited in application to English mortgages such as are defined in Section 58 Clause (e) of the Transfer of Property Act. It is common knowledge

that Section 31 of Act IX 1908 was passed to obviate the hardships that might otherwise result from that decision. The words of the section are

very wide: ""A suit for foreclosure or a suit for sale by a mortgagee may be instituted within two years from the date of the passing of the Act or

within sixty years from the date when the money secured by the mortgage became due, whichever period expires first.

Now, the document in this case is found to be a mortgage and, undoubtedly, the mortgagee brought his suit for sale on February 1st, 1909,

within the period allowed, but it is contended that the Legislature intended by the use of the word ""mortgage"" a document executed after the

passing of the Transfer of Property Act. There is no such limitation in the section and a Bench of this Court have already decided in Rama

Brahman v. Venkntanarasa Puntula 23 M.L.J. 131 that there is nothing to show that the Legislature intended to adopt the restricted meaning of the

word put upon it by the Madras High Court in the cases relied on by the appellant. We entirely concur in that view. The result is that this second

appeal is dismissed with costs of the plaintiff (1st respondent.).