Venka vs Jagannath and Others

An interesting question of Jaw has arisen in this appeal. Defendant 1 is the Appellant in this case. Jaganaath, the Plaintiff-Respondent, instituted the suit against seven Defendants. Defendant 1 Appellant is the owner and mortgagor of the property in dispute. He executed three mortgage deeds. The first mortgage deed was executed on 3rd Thir, 1319 F., in favour of Gyanba, Defendant 6'' & Mahadu. Jagannath, Defendant 7, is said to be the legal representative of Mahadu. The second mortgage deed was executed on 16th Aban 1323 F., in favour of Plaintiff-Respondent 1. And the third was executed on 28th Thir, 1334 F., in favour of Venkat Rao and Ramchander. Defendants 4 and 5, Aba Sahib and Radha Bai are the legal representatives of Venkat Rao and Defendants 2 and 3 Shri Kishen and Dhapu Bai, are the legal representatives of Ramchander.

The Plaintiff alleged in his plaint that Defendant l''s father, Earappa, mortgaged the pro-perty in his favour on 16th Aban, 1328 F.; that as per the terms of the mortgage he was to be in possession of the mortgaged property for five years, after which in default of payment of the mortgage money the property would be considered to have been sold in favour of the mortgagor; that after executing the mortgage-deed the mortgagor wrote and executed a lease-deed in the Plaintiff''s favour and that subsequently the Plaintiff filed a suit for possession on the basis of the lease-deed against the father of Defendant 1 and his brother which was decreed on 21st Behman 1339 F.; that in execution of the said decree proceedings were taken, when the original Defendant 5, Venkat Rao, the present husband of Defendant 5, Radha Bai, resisted and obstructed the execution of the decree.

The Plaintiff-decree-holder objected to the resistance but the Court decided the question in favour of the objectors and dismissed the execution petition on 1st Amardad, 1340 F., in which it was held that Ramchander, the father of Defendant 2 was in possession of the property on the basis of the mortgage deed dated 28th Thir, 1334 F. The Plaintiff, therefore, claimed that for default of payment of the mortgage money. a decree for foreclosure be passed in his favour and it be declared that the land in dispute has been sold in favour of the Plaintiff and all the right, title and interest of the Defendants in the land be declared to have been extinguished. The Plaintiff also claimed a decree for possession. Obviously, as a necessary incident of the granting of the first prayer of foreclosure, he also prayed for a decree for Rs. 780/- as mesne profits against Defendants 3, 4 and 5. There is also a prayer for general relief. Subsequently the Plaintiff abandoned his prayer for foreclosure; this is clear from the order of the trial Court dated 22nd Aban, 1350 F. from a perusal of that order it is clear that the Plaintiff abandoned that claim in view of the provisions of the Land Alienation Restraint Act. It was made clear in that order by the trial Court that the suit as such from that date will remain only for the return of the mortgage-money.

In his written statement Defendant 1 alleged that the mortgage-deed in question was without any consideration, therefore, the plain-till'' was not entitled to a decree for mesne profits or for foreclosure. He stated that the land in dispute was mortgaged in favour of Gyanba in 1319 F. (as stated above); the mortgage money due to that mortgagee was to be paid. The Plaintiff persuaded the father of the Defendant to execute the mortgage-deed in question promising that he would pay off the mortgage money due on the mortgage bond for 1319 F.; Defendant alleged that it was on the basis of such a promise that his father executed the mortgage-deed in question and also executed a lease-deed. The Defendant further states that he came to know that the Plaintiff did not pay the mortgage money due to the first mortgagee, Gyanba; that the said Gyanba instituted a suit against the father of the Defendant on the basis of the mortgage-deed dated 3rd Thir, 1319 F., which was decreed; that the Defendant''s father mortgaged the property in favour of the mortgagees whose L. Rs. are defts. 2 to 5 and thus having raised,the money paid the decretal amount due to Gyanba and according to the terms of the latter mortgage (of 1334 F.) possession was given to the mortgagee. He, therefore, prayed that the suit be dismissed.

Defendant 2 in his written statement raised the plea of limitation. Defendants 3 to 5 in their written statements stated the same facts as mentioned by Defendant 1 and further pleaded that their claim to the mortgage money will not be affected by the Plaintiff�s suit. The first Court after recording the evidence of all the parties dismissed the Plaintiff�s suit. That judgment was upheld by the First Appellate Court. On appeal the High Court remanded the case to the trial Court with the direction that all the mortgagees be made parties in the suit, After remand the trial Court passed a decree for possession in favour oil the Plaintiff holding that the Plaintiff was entitled to possession till the payment of the mortgage money; a decree for mesne profits was also granted. On appeal the lower Appellate Court dismissed the suit to the extent of mesne profits and upheld the decree of the lower Court to the extent of possession.

In this second appeal, the learned Advocate for the Appellants raised two points. He argued that the relief for foreclosure having been abandoned the Plaintiff was not entitled to a decree for possession. Secondly, he argued that the suit for mortgage money should be dismissed as having been time-barred.

With regard to the first argument it is clear that the plaint contains substantial prayer for foreclosure and the prayer for possession is only incidental. Evidently if we could grant a decree for foreclosure in favour of the Plaintiff he will be declared to be the owner of the property in dispute and as such the Defendant shall have to make over possession to him subject to equity, if any, of the other Defendants; but the Plaintiff has abandoned his claim for foreclosure. Obviously we cannot accede to his request for possession independently of his prayer for foreclosure, as is clear from the order-sheet dated 22nd Aban, 1350 F., the Plaintiff''s suit remained only to the extent of the mortgage money. The Plaintiff therein did not ask for any decree for possession pending the payment of the mortgage money. Hence, in our opinion, the Plaintiff is not entitled to a decree for possession. The judgments and decrees of the two lower Courts, therefore, must be set aside.

The next question argued was whether the Plaintiff should be given decree for the mortgage money. In this connection we have to consider the applicability of the two or three Articles of the Limitation Act. Article 116, Limitation Act provides a period of six years for a suit for compensation for the breach of a contract in writing and registered. The learned Advocate for the Appellant argued that under the provisions of the mortgage deed which is evidently an anomalous mortgage, the Plaintiff was entitled in default of payment of the mortgage money within the stipulated period to a decree for foreclosure. That prayer having been abandoned the Plaintiff can only claim the mortgage money as a sort of compensation for the alleged breach on behalf of the Appellant in not paying the mortgage money. According to that argument the time fixed in the mortgage deed for the payment of the money expired on the 16th Aban 1328 F., and the present suit instituted on 15th Shehrewar 1341 F., is clearly beyond six years from that date.

The learned Advocate for the Respondents relied upon Article 135. We are of the opinion that the said Article is not applicable. That Article lays down that in a suit by a mortgagee for possession of the Immovable property the mortgage period will be of 12 years from the date when the mortgagor''s right to possession determines. There is no question of the determination of the mortgagor''s right to possession. The next Article relied on by the learned Advocate for the Respondent is 132. That Article provides a period of 12 years for a suit to enforce payment of money charged upon Immovable property from the date when the money suit becomes due. Obviously this Article has no application whatsoever in this case as the Plaintiff is not under the terms of the mortgage entitled to file a suit for the enforcement of the payment of the mortgage money. His only remedy under the mortgage deed was for a suit for a decree for foreclosure. It is, therefore, evident that the only Article applicable in this case is Article 116. The Plaintiff can only claim the return of the mortgage money in this case on the basis of the breach of the contract on behalf of the Defendant-mortgagor. It is, therefore, a suit for compensation and Article 116 will apply.

In-- R. Ratnasabapathy Chettiar and Others Vs. V. Devasigamony Pillai, , the facts were that the Plaintiff-decree-holder had to file a suit for the recovery of the mortgage money under the personal covenant in the mortgage in that suit, he having failed to realise the full amount upon the sale of the mortgaged property, it was held that Article 116 would apply.

In--Narsingh Partab Bahadur v. Mohammad Yakub Khan AIR 1929 PC 139 (B), a principle was discussed as to whether a mortgagee has a right to sue the mortgagor for the mortgage money. In-- AIR 1940 204 (Privy Council) , the facts were that the mortgagee in his suit on the mortgage had asked for a repayment of the amount due on the mortgage & a sale in default of it; the suit for sale having been dismissed, it was held that the Court had power to make an order of repayment. It was held by their Lordships that where a registered mortgage deed contains a personal covenant to pay, the enforcement of the covenant is governed by Article 116, Limitation Act.

The learned Counsel for the Respondent argued that a relief, for possession may be granted to the Plaintiff considering him to be entitled for that relief under the general provisions of the Code of Civil Procedure, under which the Court can grant subject to the proper relief as may be deemed fit and just in view of the facts of the case. He argued that the mere abandonment of the relief for foreclosure should not be considered as a bar for his setting a decree for possession. We are afraid that in view of the facts of this case we cannot accede to this request. It is to be noted that the Plaintiff abandoned his claim for foreclosure in view of the provisions of the Hyderabad Land Alienation Restraint Act. Obviously, he must have thought at that time that for getting a relief for possession or foreclosure he must seek relief before the Revenue Authorities and that the Civil Court was not the proper forum for that relief; whether that reason and ground were correct or not we are not herein interested to decide. The Plaintiff was entitled to elect for the relief which he could have sought and he decided to relinquish his claim for foreclosure, see the proceedings of the trial Court dated 22nd Aban, 1350 F. That being the position it is clear that the Plaintiff cannot claim a decree for possession in a Civil Court, he having conceded that position explicitly or impliedly while abandoning his claim for foreclosure.

Reliance is placed on--Ranba v. Bansilal AIR 1953 Hyd 231 (D). The facts of that case are quite different from the facts of this case. It is not, therefore, necessary for us to discuss the principles laid down in that case. There the question was whether the Plaintiff has two remedies one being for relief for possession and another being for recovery of the mortgage money. In this case the Plaintiff has by his action in abandoning the relief for foreclosure practically debarred himself from claiming a decree for possession, he having thought that the Civil Court was not a proper Court wherein to seek the relief for possession in view of the provisions of the Hyderabad Land Alienation Restraint Act as stated above. It is not for us to decide the point as correct or otherwise. Thus, it is clear that he has by his action abandoned his claim for possession. The Court having specifically stated by its order dated 22nd Aban, 1350 F., that the suit remained only to the extent of the recovery of the mortgage money, we see no reason to allow the Plaintiff to go behind that statement.

The present suit as it remains in view of the order of the trial Court dated 22nd Aban 1350 F., is for a simple money decree, no question of security on the property mortgaged arises as he has withdrawn and abandoned his claim to that extent, (probably in view of the fear he entertained in respect of the provisions of (he Agricultural Land Alienation Restraint Act). Thus, we are to consider this as a simple money suit on a registered bond. From that point of view the: period of limitation available to him is only of six years.

The claim for compensation and return of the mortgage money for the breach and non-observance of the terms of the mortgage on behalf of the mortgagor is, therefore, in our opinion, time-barred, and the suit cannot be decreed. The present suit cannot be regarded as a suit under the provisions of Order 21, Rule 103, as it has been brought beyond the period of one year from the date when the order in execution proceedings was passed, namely, 1st Amardad 1340F., the present suit having been filed on the 15th of Shehrewar 1341F. Even if it be regarded as a suit for that purpose it is clearly time-barred and the order of the execution Court declaring that the Defendants are entitled to possession has become final.

In the result we set aside the judgments and the decrees of the two Courts below and dismiss the Plaintiff''s suit. In view of the facts of the case we make no order as to costs.