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Ram Chandra Sahai Vs. Rama Mal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in107Ind.Cas.591
AppellantRam Chandra Sahai
RespondentRama Mal
Cases ReferredMuhammad Hafiz v. Muhammad Zakariya
Excerpt:
.....bar to the present..........this interest it was provided that the mortgagee 'should be competent at all times to recover the mortgage money... and the interest referred to above (and again compound interest thereon) by enforcement of the hypothecation lien and sale of the property mortgaged', the words 'at all times' were qualified by a postscript. this postscript ran as follows:--'the mortgagee cannot bring a claim for refund of the mortgage money till two years. he can do so after two years.'2. the mortgagee brought a previous suit no. 1072 of 1922 within two years for the interest referred to above, together with compound interest for the period from the 3rd february, 1922, to the 3rd july, 1922. the relief claimed in that suit was for recovery of a sum of rs. 259 by sale of a portion of the mortgaged.....
Judgment:

1. This first appeal arises Out of a suit for recovery of the principal and balance of interest due under a mortgage-bond, dated the 3rd January, 1922. This bond mortgaged certain property. Some of the property was given into the possession of the mortgagee and the profits from the property were set off against a certain portion of the interest due. As regards the balance of the interest the mortgagors bound themselves to pay that interest year by year. It was stipulated in the deed that if this interest was not paid on due date it should itself bear interest at 7 annas per cent. per mensem. On failure of the mortgagors to pay this interest it was provided that the mortgagee 'should be competent at all times to recover the mortgage money... and the interest referred to above (and again compound interest thereon) by enforcement of the hypothecation lien and sale of the property mortgaged', The words 'at all times' were qualified by a postscript. This postscript ran as follows:--'The mortgagee cannot bring a claim for refund of the mortgage money till two years. He can do so after two years.'

2. The mortgagee brought a previous Suit No. 1072 of 1922 within two years for the interest referred to above, together with compound interest for the period from the 3rd February, 1922, to the 3rd July, 1922. The relief claimed in that suit was for recovery of a sum of Rs. 259 by sale of a portion of the mortgaged property. This relief was not granted. The Court, however, gave a simple money decree for recovery of the Rs. 259-1. We do not find in the mortgage-deed any provision which would have enabled the mortgagee to obtain a simple money-decree for this sum, but that decree stands good and it is immaterial whether the decree was a proper one or not.

3. It is urged, however, by the defendant-appellant who has appealed that in this previous suit the mortgagee should have claimed not only the interest referred to above but also the principal mortgage money. The contention is that the postscript should be construed to mean that the mortgagee could not bring a claim for the refund of the principal mortgage money in the event of the interest having been paid, but that he could bring a claim for refund of the mortgage money if the interest referred to had not been paid. It is suggested that the provision for the mortgagee being competent to recover by sale of the mortgaged property any of the interest that might not be paid was not subject in any way to the postscript Reference has been made to a certain decision of the Privy Council, Muhammad Hafiz v. Muhammad Zakariya 65 Ind. Cas. 79 : 44 A. 121 : 20 A.L.J. 17 : 26 C.W.N. 297 : (1922) M.W.N. 89 : 35 C.L.J. 126 : 42 M.L.J. 248 : 15 L.W. 377 : 24 Bom. L.R. 341 : 30 M.L.T. 224 : 3 P.L.T. 279 : 1 P.W.R. 1922 : A.I.R. 1922 P.C. 23 : 49 I.A. 9 (P.C.), in which it was held that, where there was a provision that in the event of certain interest not being paid, the mortgagee might bring a suit for recovery of the principal amount along with the interest and that there was also a provision that the mortgagee could not sue until three years for the recovery of principal and interest, the latter provision should not be held to control the former provision. This case is clearly distinguishable from the present case. In the present case the postscript provided that in no case should there be a suit for recovery of the mortgage money until the expiry of two years. In the decision referred to there was a provision that in a certain event the mortgage money could be recovered within the period otherwise fixed for realisation of the mortgage money and interest. The case is, therefore, to be distinguished from the present one.

4. The contention of the appellant's Counsel that the postscript should be given the construction assigned to it by him as stated above does not command our assent. We hold that the postscript prevented any suit for the mortgage money within two years. At the date, consequently, of the previous suit, the mortgagee could not sue for that mortgage money and his failure to do so cannot be held to be a bar to the present suit. For the above reasons we hold that the finding of the lower Court was correct and dismisss this appeal with costs.


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