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Lingaiah Vs. Chikkahonnalagaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKarnataka High Court
Decided On
Case NumberMisc. Second Appeal No. 86 of 1975
Judge
Reported inAIR1978Kant146
ActsLimitation Act, 1908 - Schedule - Articles 116 and 120; Transfer of Property Act, 1882 - Sections 68 and 68(1); Limitation (Amendment) Act, 1963 - Schedule - Article 62
AppellantLingaiah
RespondentChikkahonnalagaiah and ors.
Appellant AdvocateM. Dasappa, Adv.
Respondent AdvocateM. Papanna, Adv.
Excerpt:
.....but, the learned civil judge, in the appeal preferred by the plaintiff, reversed that decree holding that the decision of this court in puttama-damma's case is not a good law in view of the decision of the supreme court in monimala devi v. (b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;.....the limitation act (1908) which is similar to article 62 of the limitation act, 1963. it pro-vides for 12 years when the money sued for becomes due. the money sued for be-comes due in the instant case only after five years from the date of mortgage. the suit instituted on 4th nov. 1971 must, therefore, be held within time.in the result, the appeal fails and is dismissed. no costs.5. appeal fails.
Judgment:

1. The suit for recovery ofmoney instituted by respondent-1 was dismissed by the trial Court on the preliminary question that it was barred by limitation, but the Civil Judge, in the appeal preferred by the plaintiff, reversed that decree and remanded the matter for a decision on the merits. So the 1 st defendant appeals.

2. On 14th May 1967 the 1st defendant, why is the father of defendants 2 to 6, borrowed from the plaintiff a sum of Rs. 1,600/-executing a registered mortgage deed mortgaging the suit schedule properties and also agreeing to repay the money in five years from the date of the said mortgage. The mortgage deed purports to be a usufructuary mortgage, but the mortgagor did not deliver possession of the properties to the plaintiff. He continued to remain in possession and also defaulted to pay the loan. Plaintiff, therefore, brought a suit to recover the amount of Rs. 2,000/- inclusive of the interest said to be due as orally agreed upon by the parties. He has also asked for sale of the suit schedule properties for realisation of the decretal amount in the event ot tho defendants failing to pay the same.

The suit was based on the cause of action which, according to the plaintiff, was on 14th May 1962, the stipulated date for the repayment of the amount and the failure thereof by the mortgagor.

3. One of the contentions raised by the defendants was that the suit was barred by time and ought to have been brought within twelve years from the date of execution ot the mortgage and not from the stipulated date for the repayment of loan by the mortgagor. The trial Court following the decision of this Court in Puttamadamma v. Puttappa (1967 (2) Mys LJ 56) : (AIR 1969 Mys 20) accepted the contention of the defendants and held that the suit was barred by limitation and accordingly dismissed the suit. But, the learned Civil Judge, in the appeal preferred by the plaintiff, reversed that decree holding that the decision of this court in Puttama-damma's case is not a good law in view of the decision of the Supreme Court in Monimala Devi v. Indu Bala : [1964]5SCR635 . He held that the plaintiff was entitled to bring the suit for recovery of the mortgage money within twelve years from 14th May 1962, the date prescribed for repayment as per the covenants in the mortgage deed.

It seems to me that it is not necessary to consider the correctness of the view taken in Puttamadamma's case, Upon the facts revealed in that Judgment, there was no stipulation by the mortgagor to repay the mortgage-money within any prescribed period. If there was any such covenant, the mortgagee could have enforced the covenant to ret-over the mortgage-money under Section 68(1)(a) of the Transfer of Property Act. That right conferred by Section 68 is not a right to enforce the mortgage, but only a right to sue tor the mortgage-money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. For a proper elucidation, let me set out Section 68:

'68. Right to sue for mortgage-money-

(1) the mortgagee has a right to sue tor the mortgage-money in the following cases and not others, namely :--

(a) where the mortgagor binds himself to repay the same;

(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of Section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default ot the mortgagor;

(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor: Provided that, in the case inferred to in Clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be used for the mortgage-money'.

4. In Monimala Devi's case : [1964]5SCR635 the Supreme Court while explaining the scope of Section 68 has observed thus (at p. 1299):

'..... The right conferred by Section 68 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when mortgagor has bound himself to repay the same is governed by Article 116 of the Limitation Act Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not seemed in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Article 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security possession and not from the date when the mortgage money is repayable'.

From the above observations, it is clear that the suit to recover the mortgage-money on the basis of the personal covenant of the mortgagor is governed by Art 116 ot the Limitation Act (1908) which is similar to Article 62 of the Limitation Act, 1963. It pro-vides for 12 years when the money sued for becomes due. The money sued for be-comes due in the instant case only after five years from the date of mortgage. The suit instituted on 4th Nov. 1971 must, therefore, be held within time.

In the result, the appeal fails and is dismissed. No costs.

5. Appeal fails.


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