1. This appeal arises from a suit filed by the plaintiffs-appellants to recover from the defendants-respondents a sum of Rs. 550 with future interest and costs.
2. On 30-10-1880, a possessory mortgage was executed by one Rama, who is the plaintiffs' father, in favour of one Eknath, the grandfather Of the present defendants, in order to secure a sum of Hs. 600. On July 5, 1889, another possessory mortgage was executed by Rama in favour of Eknath in order to secure a further sum of Rs. 50.
3. In 1944 the plaintiffs filed a suit for redemption of the two mortgages and on April 18, 1940, there was a decree for redemption and according to the decree the plaintiffs were to pay to the defendants a sum of Rs. 650.
4. The mortgaged property was a house and the plaintiff's alleged that the house was pulled down wrongfully by the mortgagees while in possession. When suit No. 555 of 1944 was filed the plaintiffs stated in the plaint that they would file a separate suit to recover damages in respect! of the loss occasioned by the falling of the housei and the plaintiffs filed this suit on 24-2-1947, to recover a sum of Rs. 550, basing their cause of action as on 28-8-1946. The plaintiffs averred that the mortgaged property was pulled down by the defendants' father and grandfather and that the materials of the house were used by them for the construction of a house of their own.
It was alleged that in that way the mortgagees had unauthorisedly and illegally, disposed of the mortgaged property. It was further alleged that the mortgagees had, as possessory mortgagees, a statutory duty which they had avoided to fulfil and in that way the plaintiffs had been put to a great loss. In para. 4 of the plaint the date of the cause of action was stated to be 28-8-1946, when the plaintiffs made, by notice, a claim against the defendants which the defendants refused to comply with.
5. The defendants filed a written statement, raising various contentions. It was contended, 'inter alia', that the suit was barred under Order 2, Rule 2, Civil P. C., and that the suit was not in time.
6. The learned trial Judge raised a preliminary issue which was whether the suit was barred under under Order 2, Rule 2, Civil P. C. and answering the issue in the affirmative, dismissed the plaintiffs' suit. From the decree made in the suit the plaintiffs went in appeal before the District Court, Poona, and the learned Extra-Assistant Judge set aside the decree of the trial Court and remanded the suit for further hearing according to law, holding that the suit was not barred under Order 2, Rule 2.
7. Upon the suit going back to the trial Court, the learned trial Judge gave the plaintiffs a decree for Rs. 650 with costs of the suit and interest at 4 per cent, on the aforesaid amount from the date of suit to the date of satisfaction. On appeal from that decree, the learned Assistant Judge, by his judgment dated 16-9-1950, allowed the defendants' appeal, set aside the decree of the trial Court and dismissed the plaintiffs' suit, holding that although the plaintiffs were entitled to a sum of Rs. 200 by way of damages, the plaintiffs' claim was not in time. Prom the appellate decree the plaintiffs have come up in second appeal.
8. Upon this appeal, the only question for decision is whether the plaintiffs' suit is barred by limitation. Various articles under the Indian Limitation Act have been suggested as being applicable to the facts of this case. It is said that Article 36, Limitation Act will apply. But it is clear that that article will apply if the suit is based upon a tortious act. It is next suggested that Article 120, Limitation Act will apply. That article is a residuary article and applies when there is no specific period of limitation fixed under the Indian Limitation Act and the period is six years from when the right to sue accrues. One other article is suggested as being applicable, which is Article116 and Article116 applies to a case where there is a breach of a contract in writing registered. Now, in this case the contract between the parties has not been produced and, therefore, Article 116 is, I think, out of the question. The only articles which are then required to be considered are Articles 36 and 120. Limitation Act.
9. Now, the plaintiffs in the plaint alleged that the mortgaged property was pulled down by the mortgagees in possession. Plaintiff No. 1 gave evidence at the trial and his evidence was that the house was felled by the father of the defendant Murlidhar, that it did not fall of its own accord and the house was pulled down and the mortgagee built his own house about 9 or 10 years back. In his evidence he further stated that in the former suit No. 555 of 1944 the Court had not given permission to file a separate suit in respect of the allegations made by him in the present suit.
10. Now, as regards suit No. 555 of 1944, it was a suit brought by the present plaintiffs against the defendants for redemption of the mortgages. In that suit there was a preliminary decree, in the previous suit the plaintiffs had stated that they would bring a separate suit against the defendants for damages in respect of the loss occasioned by them to the mortgaged property.
11. The question, therefore, arises whether a mortgagor, having brought a suit for redemption, can bring another suit claiming damages in respect of the mortgaged property. It seems to me that on principle a mortgagor can bring only one suit. In a suit for redemption the mortgagor can ask the mortgagee to have the mortgage re-aeemed and to deliver the mortgaged property upon payment of the mortgage amount due to the mortgagee. In this instance what happened was that while the mortgagees were in possession, the house fell down. According to the plaintiffs it was pulled down by the mortgagees. According to the finding of the lower appellate Court, the house fell down of its own accord, i. e., in the natural course of events. I must, in the circumstances, accept the finding of the Court below, viz., that the house was not pulled down by the mortgagees while in possession.
12. Now, Mr. Kotwal contends that this suit for damages can lie and the bar of Order 2, Rule 2, does not apply. Mr. V. Section Desai on behalf of the defendants contends that on the footing that this suit is to enforce the plaintiffs' claim in relation to a tortious act committed by the defendants, the present suit will lie. But if the suit is a suit to recover damages by reason of the loss occasioned by the mortgagees, then only one suit will lie. In this connection he relies upon the principle established in the case of -- 'Anandrao v. Bhikaji AIR 1922 Bom 156(2) (A). At page 157 Sir Norman Macleod says as follows ;
'Now the liability of the parties to the mortgage in a redemption suit can only be decided once, and if this decree were to stand, the plaintiff would get back on payment of the mortgage money only the Survey Numbers in the mortgagee's possession. He would then, according to the decision of the lower appellate Court, be relegated to file a number of suits against persons in possession of those lands which the mortgagee has not restored, and if he failed to get possession, the question would arise whether ne could have recourse to the mortgagee for damages. But certainly it is not the policy of the Code to allow such proceedings. The question what is the liability of the mortgagee to account for the properties of which he got possession, must be determined in this suit, and it the mortgagee will not give back possession ot the lands, of which he was given possession, then he must pay for them, for he is liable for the restoration of the lands which have got into the hands of strangers.'
With respect, I think, this is the correct principle. A contrary view appears to have been taken in -- 'Sivachidambara Mudaliar v. Kamatchi Animal', 33 Mad 71 (B), where at p. 73 the learned Judges of the Madras High Court observed as follows :
'..As regards Section 76, Transfer of Property Act we are clearly, of opinion that it provides a cumulative remedy, and is not intended to operate as a bar to any other remedy which the mortgagor might have under the law.'
With respect, I am unable to concur in this principle. A mortgagee in possession is bound by the provisions contained in Section 76, Transfer of Property Act. By Clause (a), he must manage the property as a person of ordinary prudence would manage it if it were his own and by Clause (e), he must not commit any act which is destructive or permanently injurious to the property. The last part of Section 76 provides that:
'If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter, be debited with the loss, if any, occasioned by such failure,'
This last part of Section 76 suggests that the liability of the mortgagee can be settled when accounts are taken in pursuance of a decree made under ch. IV. It seems to me that if loss is occasioned by the mortgagee's default in the performance of the duties imposed upon him by the section, the amount of the loss should be determined in the same suit. In my view, the liability of the mortgagee to account to the mortgagor for the loss sustained by the mortgagor on account of the non-observance of the duties imposed upon him by Section 76 must be determined and settled In the suit brought by the mortgagor for redemption.
13. However that may be, this question does not strictly arise for decision because at a previous stage of the proceedings the learned Extra Assistant Judge too the view that this suit of the plaintiffs was not barred under Order 2, Rule 2, Civil P. C. The defendants did not appeal from that order and, in ray opinion, the order has become conclusive in view of Section 105, Sub-section (2), Civil P. C. which provides that:
'Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'
Therefore, although I do not agree with the view taken by the learned Judge that a separate suit can lie, it is not now open to the defendants to contend that a separate suit will not lie even if the view be that the suit is a suit which arises out of a contract.
14. Mr. Desai, however, contends that the suit is a suit to recover damages arising out of a tor-tious act. This is suggested by the language of the plaint. This is also fortified by the evidence which plaintiff No. 1 gave at the trial. Here again, in my opinion, the true view would appear to be that when a mortgagee is in possession, any act which he does cannot be said to be an act arising out of a tort. A mortgagee in possession has a right to remain in possession, and if he commits an act which is illegal, the act is not a tortious act but is only an illegal act and is attracted by the provisions of Section 76, Transfer of Property Act. Mr. Desai strongly relies upon the view taken by the Madras High Court in 33 Mad 71 (B)', in which the last part of the head-note runs as follows:
'In suits for compensation for tort to immoye-able property, the period of limitation prescribed in Article36 of Schedule II of the Limitation Act runs from the date of the tort and not from the time when the plaintiff has knowledge of such tortious act.'
In that case the act which was alleged to be tortious was an act of cutting trees. The trees were cut in about 1901 and it was held that the suit for damages was governed by Article, 36. In my opinion, when the relationship is that of a mortgagor and mortgagee, it is, I think, wrong in principle to say that any act which is committed by the mortgagee in possession is a tortious act. In my opinion, It is an act which is contrary to the express provisions of Section 76. Therefore, this suit which is a suit for compensation for the loss occasioned to the plaintiffs by the wrongful act of the mortgagees in possession is a suit which would not be governed by Article 36 but would be governed by Article120, Limitation Act. According to the evidence of plaintiff No. 1, the house fell down some 9 or 10 years before 1947 when he gave evidence. This means that the house fell down in about 1937. If the suit Is governed by Article 36, then the suit is clearly out of time.
But if the suit is governed by Article 120, then the suit is not barred by the law of limitation, because the plaintiffs' cause of action would be the date when the plaintiffs demanded redemption which was in 1944. The present suit is admittedly within six years from 1944. The plain-tiffs stated the date of the cause of action as 28-8-1946. But, in my opinion, that is not the correct date when the cause of action arose because the plaintiffs had a right to claim the amount of loss when the plaintiffs filed the former suit, and since there is no bar of Order 2, Rule 2, the present suit is well within time. The lower appellate Court has found that the amount of the loss is the price of the materials of the house which fell down. That amount has been estimated at Rs. 200. The plaintiffs will, therefore, be entitled to a decree for that amount,
15. The result is that this appeal will be allowed, the decree of the lower appellate Court set aside and there will be a decree in favour of the plaintiffs for a sum of Rs. 200 with interest on that amount at 4 per cent, from the date of suit to the date of payment. The plaintiff's shall recover their costs from the defendants In proportion to their success throughout and the plaintiffs shall pay the defendants the costs in proportion to their failure, also throughout.
16. Appeal allowed.