1. The plaintiff brought this suit to enforce a simple mortgage of 15th March 1898, by the sale of certain villages. The mortgage was for Rs. 13,200 bearing interest at 1 per cent, per month for a period of three years, and eight villages were hypothecated. The mortgage was contracted to pay off earlier mortgages. On the 1st of November 1898, the mortgagor executed a second mortgage of the same villages to Babu Inder Sen Singh who is now represented by Mt. Anpurna Kunwar.
2. On 4th May 1900, the mortgagor executed a usufructuary mortgage in favour of the plaintiffs for payment of the sum of Rs. 17,712 due on the mortgage of 15th March 1898, and other items, amounting in all to Rs. 22,500 giving possession of the two villages of Rajdharpur and Konda. Under this mortgage the mortgagee was entitled to sue for the amount due to him on dispossession, and he would in that case be entitled to recover also from the property hypothecated under the bond of 15th March 1898. It is this condition with which we are mainly concerned in this appeal, as the plaintiffs admit that their right to sue arose when they were dispossessed of the village of Konda on the 24th of February 1911. Meantime the plaintiffs had in 1904 purchased the village of Rajdharpur, but as the result of a suit brought by the second mortgagee Mt. Anpurna in 1909, the village of Rajdharpur was again sold and purchased by Mt. Anpurna.
3. The plaintiffs filed this suit on 9th December 1922, and have obtained a decree against three villages, namely, Rajdharpur and Pura Sarwan in the possession of Mt. Anpurna and Khalispur which had been purchased in 1919 by Durbali Tewari (Defendant No. 4). This appeal is filed by Mt. Anpurna who claims that the suit is barred by limitation as against the villages of Rajdharpur and Pura Sarwan. The suit has been decreed on two grounds: first, because the mortgage of 1898 has been held to have become merged in the mortgage of 1900, and thereby acquired the period of limitation applicable to that deed, and secondly, because the order of the District Judge of Azamgarh passed in 1912 in Anpurna's own suit, to the effect that her claim was subject to the prior charge of the plaintiff's mortgage operates as 'practically' res judicata. We do not agree with either of these findings. The deed of May 1900, although executed to satisfy the mortgage of March 1898, is of an entirely different nature.
4. Under the simple mortgage the mortgagee had a right to sue for the principal after three years; under the usufructuary mortgage he could sue at once if he failed to get possession, or a claim was brought for ex-proprietary rights; but otherwise he could only sue on being dispossessed. This was an entirely new burden on the property of which the junior mortgagee had no notice, and we are not prepared to find that she should be bound by an agreement altering the period of limitation allowed for a suit on the prior mortgage. In a ruling reported as Mahomed Ibrahim Hossein Khan v. Ambika Persad Singh  39 Cal. 527 their Lordships of the Privy Council held that when a suit was brought on a simple mortgage of 1888 seeking to make certain property covered by that mortgage and by a zarpeshgi deed of 1877 liable for the decretal amount, the right of priority set up by the plaintiffs on the zarpeshgi deed was barred by limitation as the suit should have been brought within 12 years of the date when the money due on that deed became re-payable. The principle in that case is the same as in the appeal before us. The same view was taken by Mr. Justice Lindsay when Judicial Commissioner of Oudh [Deputy Commissioner of Lucknow v. Sukhnandan  17 O.C. 38]. It may be that the simple mortgage of March 1898 was kept alive by the mortgage of May 1900, but it was not given second birth, and if the plaintiffs retained a right to sue on the simple mortgage of March 1898, at all, they did so only in accordance with the rule of limitation applicable to that bond, and their suit became time-barred in March 1913.
5. In order to meet this position the plaintiffs argue that the usufruct of the two villages enjoyed them in accordance with the mortgage of May 1900, should be regarded as a payment of interest on the simple mortgage of March 1898. This objection is easily answered by a reference to the terms of the mortgage of May 1900. This mortgage was for a sum of Rs. 22,500 and the usufruct of the two villages was given to satisfy the interest on that sum, and not the Interest due on the prior mortgage for Rs. 13,200. In our opinion there has been no payment or acknowledgment which would bring the suit within time under Section 20 or Section 19 of the Limitation Act.
6. As to the second finding of the learned Judge of the Court below that the decree of 1912 has practically the effect of res judicata, we are of opinion that this view is mistaken. In 1912 the mortgage of March 1898, was still within time, and still had priority to the mortgage of November 1898, on which the plaintiff in that suit based her claim. The fact that the plaintiffs' charge was then declared to have priority in no way prevents the claim from subsequently becoming barred by time.
7. Nor can the plaintiff base his suit on the deed of May 1900, and obtain a decree for sale subject to the appellant's mortgagee rights because when an opportunity was given to the plaintiff in 1912 to redeem the intermediate mortgage, he refrained from doing so, and allowed the sale to be executed in favour of Mt. Anpurna.
8. In our opinion, the plaintiffs' suit as against the villages of Rajdharpur and Pura Sarwan was barred by limitation, We allow the appeal with costs against the contesting respondents including fees in this Court on the higher scale, and order that these two villages shall be exempted from the decree.