Vadavatte Gopalan Nair vs Moideen Madar Rowthen

Madhavan Nair, J.—Plaintiff is the appellant. This second appeal raises a pure-question of law, and that question is whether the suit is

barred by limitation under Article 132, Lim. Act. The facts are these. The owners of the suit properties granted two mortgages (Exs. F and G)

over the suit properties in favour of one Eaman Nair. They subsequently granted a usufructuary mortgage of the same properties in favour of, one

Raghunatha Sastri for Rs. 475 (see Ex. 11), authorizing him to pay off the prior mortgages in favour of Raman Nair and reduce the properties into

possession. He paid in cash Rs. 125 to the mortgagors but he never paid off the prior mortgages. Raman Nair, the original mortgagee, assigned his

rights under the two mortgages in favour of one Bada. Bivi under Ex. 13. The original mortgagors also assigned their mortgagor''s rights in the

properties to the said Bada Bivi. Thus Raman Nair''s mortgages have become extinguished and the only outstanding mortgage on the properties

was the one in favour of Raghunatha Sastri, and Bada Bivi became the owner of the properties. Later on Bada Bivi granted a mortgage in respect

of these-and some other properties to one Chidam-bara Iyer and took back the properties on lease. While matters stood thus,, Raghunatha

Sastri''s son Sivarama Sastri instituted O.S. No. 512 of 1914 to recover the sum of Rs. 125 which had been advanced under Ex. 11, by sale of

the mortgaged properties. The subsequent mortgagee under Bada Bivi,. Chidambara Ayyar, was not impleaded as a party to this suit.

Subsequently Chidambara Ayyar''s son, defendant 9 in the present case, filed O.S. No. 68 of 1916, for recovery of arrears of rent due-to him

under the lease of the properties which had been mortgaged to his. father by Bada Bivi by sale of the properties.

Defendant 9 obtained a decree in that suit and in execution of that decree the plaint properties were brought to sale and purchased by defendant

10 and he subsequently assigned the sale rights, to the present defendant 1 in the suit. In that suit the prior mortgagee Raghunatha Sastri or his son

Sivarama Sastri has not been impleaded as a party. Later on, the mortgaged properties were Bought to sale in execution of the decree in O.S. No.

512 of 1914 which had been obtained by Sivarama Sastri on Ex. 11 &8d in that sale the plaintiff in the present suit became the purchaser under

He sale certificate Ex. A dated 6''th November 1919. When the plaintiff applied for delivery of possession of the properties in execution on the

sale certificate he was successfully resisted by defendant 1. The suit out of which this second appeal arises was then instituted by the plaintiff on

27th June 1921 for the enforcement of his rights under the mortgage. As originally framed the suit was only for recovery of possession of the

properties with mesne profits. As the result of Second Appeal No. 558 of 1925 the plaint was allowed to be amended by adding the prayer for

sale of the properties on the strength of the mortgage Ex. 11. The main contention of the defendant is that the plaintiff''s suit is barred by limitation.

The first Court held in favour of the plaintiff. The appellate Court held against him and as a result the plaintiff''s suit was dismissed.

In this second appeal the short question for decision is whether the plaintiff''s suit is barred by limitation. The plaintiff is in law the holder of the

rights of the first mortgagee over the suit properties. To the suit instituted by the first mortgagee, in execution of the decree of which the properties

were sold, the second mortgagee was not a party. It has been found in the previous proceedings that at the time of his suit the first mortgagee was

not aware of the second mortgage. The second or the subsequent mortgagee is now represented by defendant 1. To the suit by the second

mortgagee the first mortgagee was not a party. Though the second mortgagee''s suit was instituted later than the suit by the first mortgagee, the

purchase of the properties in execution of the decree passed in the second mortgagee''s suit was earlier in date than the purchase of the properties

by the plaintiff in execution of the decree in the first mortgagee''s suit. The earlier mortgage Ex. 9 is dated 1899 and the purchase by the plaintiff of

the properties under Ex. A was on 6th November 1919. The plaintiff''s suit was instituted on 27th June 1921. Under Article 132, Lim. Act, the-

period of limitation to enforce payment of money charged upon immovable property is 12 years, time being calculated from the date when the

money sued for becomes due. If limitation is calculated in the present case from the date of the mortgage, clearly the suit is barred by limitation as

held by the lower Court-But if the period is calculated from the date of purchase of the properties by the plaintiff, then the suit is not barred.

It is contended by the counsel for the appellant that after the sale of the properties and its purchase in auction the purchaser gets a fresh cause of

action, in addition and that therefore the present suit is not barred by limitation. On the other hand, it is contended by the respondent that the right

which the'' plaintiff seeks to enforce is the right under the mortgage Ex. 9 and since that mortgage does not cease to exist after the decree in the

suit, time should be calculated from the date of the mortgage and no fresh cause of action arises, from the date of the sale. Till very recently, the

precise question raised in the present suit has not been considered in any decision of this Court. The present question did not arise in Venkat Reddi

v. Kunjappa Goundar 1924 Mad 650, but it did arise in a recent decision of this Court by Ramesam and Stone, JJ., in Appeal No. 65 of 1932.

In, that case they held, following Babu Lal v. Jalakia 1917 All 359 that the purchaser of the equity of redemption in a suit by the first mortgagee

gets a cause of action in ad-; dition to the cause of action on the mortgage against a second mortgagee, who could not have been sued on the

mortgage because his existence was not known. In the present case as in A.S. No. 65 of 1932 the existence of the second mortgage was not

known to the plaintiff in O.S. No. 512 of 1914. It is conceded that this decision exactly covers the present case; and if it is followed, it should be

held that the plaintiff''s suit is not barred by limitation and that the lower Court''s decision should be set aside.

Mr. Narayanaswami Ayyar argues that the decision in A.S. No. 65 of 1932 requires reconsideration that it is in conflict with the decision in

Chandramma v. Seethan Naidu 1931 Mad 542 and that subsequent to that decision it has been held by the Calcutta High Court in Jagat Chandra

Dev v. Abdul Rashid 1935 Cal 139 that the plaintiff''s cause of action is on the mortgage and that the suit would be barred by limitation. The

learned Judges in A.S. No. 65 of 1932 themselves point out that the latest decision of the Allahabad High Court in Lachminarain Das v. Hirdey

Narain 1926 All 480 is against their view but that they prefer to follow an earlier Allahabad decision in Babu Lal v. Jalakia 1917 All 359 which

was overruled by the decision in Lachminarain Das v. Hirdey Narain 1926 All 480. The question for decision is therefore not one free from

difficulty, but sitting as a single Judge I am bound by the decision in A.S. No. 65 of 1932 which is by a Bench of two Judges. Applying that

decision I would hold that the suit is not barred by limitation. On point No. 2 the lower Court holds that if the suit is not barred by limitation, then

there is no reason why defendant 1 should not be made also personally. liable so far as the costs are concerned. I would accept that finding. The

result is that the lower Court''s decree is set aside and the first Court''s decree restored. In circumstances of the case, I order that in this Court

each party will bear his own costs. Time for redemption six months from this date. As the question is one of importance and the Allahabad and the

Calcutta Courts take a view different from the view of this Court in A.S. No. 65 of 1932 and as it is not clear whether the decision in A.S. No. 65

of 1932 is not in conflict with the decision in Chandramma v. Seethan Naidu 1931 Mad 542. The appellant is entitled to his costs in the appeal in

the lower appellate Court and not to his costs on the memo. He has got his costs in the first Court.