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Babu Ishri Pershad Vs. Syed Muhammad Sami and After His Death Elvina Sami and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All133; 60Ind.Cas.829
AppellantBabu Ishri Pershad
RespondentSyed Muhammad Sami and After His Death Elvina Sami and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 116 - mortgage--mortgagee agreeing to pay prior mortgagee--default in payment--payment made by mortgagor--suit for damages--cause of action, date of, accrual of--limitation applicable. - - the prior mortgage covered not only the property in mauza kol but other property belonging jo the mortgagor, in the mortgage-deed it was clearly and distinctly set down that the money was to regain with the mortgagee and that an: the suit was brought in the year 1916 well within the period of six years from the 20th of january 1912. the suit is clearly governed by article 116 of the limitation act, being a suit for compensation for breach of a contract in writing registered......of sum of rs. 1,000 and out of it they left rs. 530 in the hands of the mortgage for payment to a prior mortgagee name tapeshwar rai. this sum was due on foot of a deed, dated the 20th of february i860. the prior mortgage covered not only the property in mauza kol but other property belonging jo the mortgagor, in the mortgage-deed it was clearly and distinctly set down that the money was to regain with the mortgagee and that an: interest which might accrue on this suit in the future would be entirely upon his shoulders and that he would have to pay it when he paid rs. 530. it is quit clear from the deed that the money was left with baldeo prasad to pay whenever he pleased, go long as he did pay it, his being solely responsible for any interest which might accrue. baldeo prasad did not.....
Judgment:

1. This appeal and Second Appeal No. 356 of 1918 arise out of two cross-suits brought by the same parties. Two persons Shah Muhammad Fasi-uz Zaman and Shah Abdur Razzaq, ancestors the plaintiffs-respondents, executed a usu fructuary mortgage of their share in Mauza Kol together with a grove in favour Baldeo Prasad, the present defendant appellant's predecessor-in-title, in lieu of sum of Rs. 1,000 and out of it they left Rs. 530 in the hands of the mortgage for payment to a prior mortgagee name Tapeshwar Rai. This sum was due on foot of a deed, dated the 20th of February I860. The prior mortgage covered not only the property in Mauza Kol but other property belonging Jo the mortgagor, In the mortgage-deed it was clearly and distinctly set down that the money was to regain with the mortgagee and that an: interest which might accrue on this suit in the future would be entirely upon his shoulders and that he would have to pay it when he paid Rs. 530. It is quit clear from the deed that the money was left with Baldeo Prasad to pay whenever he pleased, go long as he did pay it, his being solely responsible for any interest which might accrue. Baldeo Prasad did not paid this money and, later on, the prior mortgage, obtained a decree for Rs. 962-8-3 on the 14th of December 1905. He assigned his decree to another person who took out execution of it and on the 20th of January 1912 the share in Meuza Kol was put to sale and purchased by defendant No. 3 for Rs. 500. The prior mortgagee then sought to bring the remaining hypothecated property to Bale in satisfaction of the balance of the mortgage debt. Whereupon the original mortgagors, in order to save their property, paid Rs. 718-6-6 and saved it. They have now sued to recover damages from the mortgagee. The heirs of the mortgagee at the same time have brought a suit to enforce their mortgage-deed and to recover the money on the allegation that the mortgagors have not put them into possession of all the mortgaged property. We must note here that the mortgage in favour of Baldeo Prasad was a usrfructuary mortgage, The courts below hnave some to the same eon-elusion, namely, that the allegation of the mortgagees that the mortgagors did not put them into possession of the mortgaged property is untrue. They have, therefore, dismissed the mortgagees suit. In the mortgagors suit for damages they have taken into account what was due from the mortgagors to the mortgagees and have come to the conclusion that a sum of Rs. 996 is due to the plaintiffs mortgagors from the defendants. This amount has been decreed in their favour together with proportionate costs in both Courts. The point taken before ns in this appeal, that is to say, the appeal of the defendant-mortgagees, is that the suit is barred by limitation. It is urged that the cause of action accrued on the date of the mortgage, that is, on the 12th of May 1899, Our attention has been sailed to certain rulings under which if this contention were correct, the suit would be barred by limitation. But, in. our opinion, those rulings do not affect the present case. They do not apply in as much as the facts are different. It is clear to us that the agreement between the parties to the mortgage of the 12th of May 1899 was that the mortgagee might pay the Bum of Rs. 530 to the prior mortgagee when and where he pleased, he taking upon his shoulders all liability for the interest which might in future accrue. This being so, the present plaintiffs had no cause of action until they were damnified. The suit was brought in the year 1916 well within the period of six years from the 20th of January 1912. The suit is clearly governed by Article 116 of the Limitation Act, being a suit for compensation for breach of a contract in writing registered. In our opinion it is not barred by time and the appeal, therefore, fails and is dismissed with costs including fees on the higher seals.


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