Oldfield and Tyrrell, JJ.
1. The plaintiff leased three villages to the defendant, Earn Pathak, for two years, 1279 and 1280 fasli, at a rent of Rs. 3,000 a year, and the latter executed a deed, dated the 26th August 1871, by which he covenanted to pay the annual rent and fulfil other conditions of the lease, and gave security in Rs. 3,000 by mortgage of landed property. He fell into arrears, and the plaintiff instituted suits in the Rent Court, and in 1874 obtained three decrees for arrears of rent He took out execution of these decrees, and payment was arranged to be made by instalments, and the decrees were partially satisfied, and thus further execution is now barred by limitation The plaintiff has now brought the present suit to recover the balance due by enforcement of the mortgage security under the deed dated the 26th August 1871, against Earn Pathak and Chunni Lal, who, on the 22nd August 1878, purchased the mortgaged property.
2. We are only in this appeal concerned with the claim so far as it refers to Chunni Lal. He pleaded that the suit was barred under the provisions of Section 43; that since the rent decrees had become time-barred, the claim could not be maintained; and he also pleaded fraud and collusion between the plaintiff and Earn Pathak. The Court of First Instance did not consider Section 43 was a bar, but that the decrees for rent being time-barred, a suit to enforce the mortgage security could not be maintained. The Judge, in appeal, admits that the rent decrees are time-barred, but considers that this affords no ground for not enforcing the claim on the mortgage security, and he overruled the plea of fraud and collusion and decreed the claim in full. The defendant Chunni Lai has appealed.
3. In our opinion the decree should be affirmed, and the several pleas on the part of appellant are invalid.
4. Under the deed dated the 26th August 1871, Earn Pathak gave collateral security to the amount of Rs. 3,000 by a mortgage on certain immoveable property of his for the payment of the rent. The plaintiff had two separate rights of action-one on the contract to pay rent, the other on the mortgage security. He could only enforce the-first by a suit in the Revenue Court to recover arrears of rent; the other be could only enforce by suit in the Civil Court. Consequently there can be no bar to the latter suit by reason of the suit instituted in the Revenue Court, with reference to the provisions of Section 43 of the Civil Procedure Code. Further, it is not the case, as was contended by appellant's counsel, that when the plaintiff obtained decrees for rent, the mortgage security merged in the judgment-debts, and he lost his remedy on it. The rights are distinct. The plaintiff's right of suit to enforce the mortgage arises by reason of there being an existing debt for rent, and remains till it is satisfied, or so long as he can institute a suit to enforce the mortgage. The mere taking of a money-decree does not extinguish the creditor's lien-Emam Momtaz-ood-deen Mahomed v. Rajcoomar Dass, 15 B. L. R., 408. Nor is the further contention valid that the right of action on the mortgage security is lost because the execution of the decrees for rent of the Revenue Court is time-barred. The right which the plaintiff has to recover the sum of Rs. 3,000, secured by mortgage, is distinct from the right to recover arrears of rent. The last is based on a contract to pay rent, arrears of which are recoverable exclusively in the Revenue Court; the former on a contract securing a certain sum to plaintiff by a mortgage of property in the event of rent becoming due.
5. The recovery of the arrears of rent may be time-barred as a judgment-debt, but the debt is not necessarily extinguished. The only effect of the decrees being time-barred is that the rent is not recoverable in execution, but the debt exists nevertheless, so far as to enable the amount secured by mortgage to be recovered by suit in the Civil Court. The right to recover on the mortgage security can be enforced in the Civil Court so long as a suit for its enforcement in the Civil Court is not time-barred under the Limitation Act.
6. The amount which the plaintiff can recover is limited to Rs. 3,000, and that sum is decreed against the appellant by enforcement of the mortgage. The decree of the Lower Appellate Court is modified accordingly. The respondent will have his costs in all Courts in proportion against the appellant.