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Gurappa Bhimanna Chidguppi Vs. Madwalappa Ramchandrappa Dumane - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal No. 81 of 1937
Judge
Reported inAIR1939Bom392; (1939)41BOMLR832
AppellantGurappa Bhimanna Chidguppi
RespondentMadwalappa Ramchandrappa Dumane
DispositionAppeal dismissed
Excerpt:
.....relief act (xvii of 1879), sections 3, clause (w), and 72 - registered mortgage-suit for sale of mortgaged property-personal decree in case of deficit of sale proceeds-application for personal decree-limitation-indian limitation act (ix of 1908), article 116.;on february 23, 1923, the defendant, an agriculturist, passed a registered mortgage-deed of his property agreeing to repay the mortgage-money within one year, and, if the property was insufficient to discharge the debt, to pay it personally. in the suit filed by the mortgagee, on february 23, 1931, to recover the amount due under the mortgage deed, a mortgage decree was passed with liberty to apply for a personal decree if the sale proceeds of the property were found insufficient. the sale proceeds being insufficient, the..........recovery of money from a person. the suit was primarily based on a mortgage-deed and the principal relief claimed by the respondents was the recovery of the mortgage debt by the sale of the mortgaged property, and a personal decree was claimed only in case the sale-proceeds were found insufficient. it is true that a suit by a mortgagee to recover his mortgage dues falls under clause (y) of section 3 of the dekkhan agriculturists' relief act vide gulamhussein v. clara d'souza i.l.r. (1928) 53 bom. 819 but it is possible that a suit may contain different reliefs and may, therefore, fall under different clauses of section 3. this aspect was considered in essa abdulla v. khatijabai i.l.r. (1930) 55 bom. 566 where a question arose whether the high court had jurisdiction to try a suit on a.....
Judgment:

Lokur, J.

1. This second appeal is filed against a personal decree passed against the appellant for the recovery of the deficit, out of a mortgage decree passed against him, that remained due after the sale of the mortgaged property. The appellant mortgaged his property to the deceased father of the respondents for Rs. 2,500, on February 23, 1923, agreeing to repay that amount within one year. The respondents filed suit No. 445 of 1931, on February 23, 1931, to recover the amount due under the mortgage-deed by the sale of the mortgaged property, and the deficit from the appellant in person. The usual mortgage decree was passed on November 23, 1931, which reserved to the respondents liberty to apply for a personal decree if the sale-proceeds from the mortgaged property be found insufficient, provided such claim for a personal decree was 'legally admissible.' In execution of that decree the mortgaged property was duly sold and the sale-proceeds fell short by Rs. 888-6-6. The respondents then made this application for a personal decree against the appellant to recover that amount. The appellant's contention with which we are concerned in this appeal was that when the suit was filed by the respondents against him, their claim for a personal decree was already time-barred under Article 116 of the First Schedule to the Indian Limitation Act, 1908. The trial Court upheld this contention and rejected the respondents' application. In appeal it was held that the respondents' claim for a personal decree was governed by Section 72 of the Dekkhan Agriculturists' Relief Act, and as the agreement was contained in a registered document, the period of limitation1 for a suit on that document was twelve years and not six years under Article 116 of the First Schedule to the Indian Limitation Act. The cause of action accrued one year after the date of the mortgage, i.e. on February 23, 1924, and as the suit was filed on February 23, 1931, the respondents' claim for a personal decree would be time-barred if the period of limitation was only six years. The question, therefore, is whether that claim is governed by Section 72 of the Dekkhan Agriculturists' Relief Act which extends the period of limitation to twelve years. Section 72 says:

In any suit of the description mentioned in Section 3, Clause (w), for the recovery of money from a person who at the time when the cause of action arose was an agriculturist in any of the districts of Poona, Satara, Sholapur, and Ahmednagar,...

(a) when such suit is founded on a written instrument registered under this Act or any law in force at the date of the execution of such instrument,-twelve years.

2. It is not disputed that the claim for a personal decree against the appellant is founded on an instrument registered under the Indian Registration Act, nor is it disputed that when the cause of action arose the appellant was an agriculturist. But it is urged that Section 72 of the Dekkhan Agriculturists' Relief Act would not be applicable since the suit in which a personal decree was claimed is not a suit of the description mentioned in Section 3, Clause (w), for the recovery of money from a person. The suit was primarily based on a mortgage-deed and the principal relief claimed by the respondents was the recovery of the mortgage debt by the sale of the mortgaged property, and a personal decree was claimed only in case the sale-proceeds were found insufficient. It is true that a suit by a mortgagee to recover his mortgage dues falls under Clause (y) of Section 3 of the Dekkhan Agriculturists' Relief Act vide Gulamhussein v. Clara D'Souza I.L.R. (1928) 53 Bom. 819 but it is possible that a suit may contain different reliefs and may, therefore, fall under different clauses of Section 3. This aspect was considered in Essa Abdulla v. Khatijabai I.L.R. (1930) 55 Bom. 566 where a question arose whether the High Court had jurisdiction to try a suit on a mortgage against an agriculturist who was not residing in Bombay. In that case their Lordships had to construe Section 11 of the Dekkhan Agriculturists' Relief Act which lays down:

Every suit of the description mentioned in Section 3, Clause (w), may, if the defendant, or, when there are several defendants, one only of such defendants, is an agriculturist, be instituted and tried in a Court within the local limits of whose jurisdiction such defendant resides, and not elsewhere.

In that suit also, as in the present case, three distinct reliefs were claimed, viz. (a) recovery of the mortgage amount from the defendants, (b) in case of failure, recovery of that amount by the sale of the mortgaged property, and (c) if the proceeds of sale were insufficient, then liberty to apply for a personal decree for the balance. Discussing the nature of the suit with regard to those reliefs, the learned Chief Justice observed (p. 538):.it seems to me clear that an ordinary action to enforce a mortgage may fall within Clause (w) and Clause (y). Where a mortgage contains a covenant for payment and a conveyance of property as security for the debt, an action to enforce the mortgage may involve a claim for a money judgment which would fall under Clause (w) and it may include a claim to enforce the mortgage by foreclosure or sale which would fall under Clause (y). But those two forms of relief are really quite distinct. In many cases you may have a mortgage without any covenant for payment, in which case your only relief is for foreclosure or sale; or you may desire to enforce a mortgage by an originating summons, in which case you must confine your relief to foreclosure or sale, and you cannot ask for a money judgment. So that the two forms of relief which you can ask for in the action seem to me to be quite distinct.

3. On this ground it was held that the suit in that case consisted of two distinct parts, one falling under Clause (w) and the other under Clause (y). It was held that the part of the suit which fell under Clause (w) was beyond the jurisdiction of the High Court as under a 11 it had to be filed within the jurisdiction of the Court where the agriculturist-defendants lived; but it was held that the other part of the suit which fell under Clause (y) could be tried by the High Court. The same principle will also apply to the present case. Just as Section 11 was made expressly applicable only to a suit of the description mentioned in Section 3, Clause (w), so. also Section 72 is made applicable only to suits of the description mentioned in Section 3, Clause (w). As in that case, here also the suit asked for two distinct reliefs, one falling under Clause (w) and the other under Clause (y) ; and as Section 11 was held applicable to that part of the suit which fell under Clause (w), so too in the present case that part of the suit which seeks the relief falling under Section 3, Clause (w), must be held to be governed by Section 72. A suit may include several reliefs, some of which may be in time and the others time-barred. The question whether a suit is in time or not cannot be decided unless each relief claimed in the suit is separately considered. So far as the respondents' claim to recover the mortgage debt by the sale of the mortgaged property is concerned, it is governed by the provisions of the Indian Limitation Act. But as regards the other relief for a personal decree which falls under Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act, the period of limitation is twelve years under Section 72 of the Act. It is argued that the section does not apply to a suit which falls under both Clauses (w) and (y) of Section 3 of the Act and that it must be confined only to those suits which fall only under Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act. This argument is inconsistent with the reasoning adopted in Essa Abdulla v. Khatijabai. There the different parts of the suit with regard to the different reliefs were considered to be distinct and were held to be governed by different considerations. Section 11 was held to, apply only to that part which fell under Section 3, Clause (w), although the suit as a whole fell under both Clauses (w) and (y). Following that reasoning, I agree with the view taken by the lower appellate Court that, so far as the respondents' claim for a personal decree was concerned, the suit falls under Section 3, Clause (w), and is governed by Section 72 of the Dekkhan Agriculturists' Relief Act. That claim was, therefore, in time when the suit was filed.

4. The appeal is, therefore, dismissed with costs.


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