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Lakshmanan Chettiar (Dead) and ors. Vs. Sella Muthu Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1925Mad76; 84Ind.Cas.301; (1924)47MLJ602
AppellantLakshmanan Chettiar (Dead) and ors.
RespondentSella Muthu Naicker and ors.
Cases ReferredNidhiram Bandopadhya v. Sarbessur Biswas
Excerpt:
- - 2. it is argued by the plaintiff-appellant that his suit is one for redemption and that article 148 of the limitation act applies to the facts of the case and, if so, his suit is well within time......limitation. the facts of the case are not disputed. the 1st defendant, who was the assignee of the mortgage decree in o.s. no. 380 of 1897 obtained by one andiappa on the foot of a mortgage, dated the 9th of august, 1891, purchased the mortgaged properties at the auction sale. to this suit the plaintiff-appellant, who was a subsequent incumbrancer holding a simple mortgage, dated the 9th of september 1895 was not a party. similarly the 1st defendant was not impleaded as a party to o.s. no. 207 of 1908 brought by the plaintiff to enforce his own mortgage. the plaintiff obtained a decree in his suit and in the course of execution of his decree purchased items 1 and 2 which are the only items we are concerned with in this second appeal. the plaintiff in the suit out of which this second.....
Judgment:

Madhavan Nair, J.

1. The question of law argued in this Second Appeal is one of limitation. The facts of the case are not disputed. The 1st defendant, who was the assignee of the mortgage decree in O.S. No. 380 of 1897 obtained by one Andiappa on the foot of a mortgage, dated the 9th of August, 1891, purchased the mortgaged properties at the auction sale. To this suit the plaintiff-appellant, who was a subsequent incumbrancer holding a simple mortgage, dated the 9th of September 1895 was not a party. Similarly the 1st defendant was not impleaded as a party to O.S. No. 207 of 1908 brought by the plaintiff to enforce his own mortgage. The plaintiff obtained a decree in his suit and in the course of execution of his decree purchased items 1 and 2 which are the only items we are concerned with in this Second Appeal. The plaintiff in the suit out of which this Second Appeal arises claims redemption and possession of items 1 and 2 and is met with the plea that his suit is barred by limitation under Article 132 of the Limitation Act inasmuch as he did not bring his suit within twelve years from the due date of his own mortgage. It is undisputed that, if Article 132 applies, the plaintiff's suit would be barred by limitation as his suit has been brought more than twelve years from the date of his mortgage. The lower Appellate Court accepting the plea of the defendant has dismissed the suit as barred by limitation.

2. It is argued by the plaintiff-appellant that his suit is one for redemption and that Article 148 of the Limitation Act applies to the facts of the case and, if so, his suit is well within time. Reliance is placed on the observations in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 dealing with the rights of the second mortgagee to redeem the first mortgagee. It is no doubt true that the second mortgagee has the right of redeeming the first mortgagee, hut that right is not as absolute as it is sought to be made by the learned vakil for the appellant. The right of a puisne mortgagee to redeem is only ancillary to his right to work out his remedy against the mortgaged estate (see Fisher on Mortgage, p. 741, para. 1448). He is only permitted to redeem for the purpose of working out his own security Ramsbottam v. Walks 5 LJNS Ch 92. The right of a puisne mortgagee to redeem the prior mortgagee in a case where he had not been joined in a suit on the first mortgage is described in Muhammad Usan Rowthan v. Abdulla : (1900)10MLJ347 . as the right to redeem that mortgagee (i. e., first mortgagee) with a view of enforcing his own mortgage [see also Goverdhana Doss v. Veeraswami Chetty ILR (1902) M 537.]. His right to redeem the first mortgage must be considered to be only a means of securing the object of enforcing his own claim by sale. It appears, therefore, that the proper article of the Limitation Act applicable to this case is Article 132. This view is supported by a decision of the Calcutta High Court reported in Nidhiram Bandopadhya v. Sarbessur Biswas (1909) 14 CWN 439. In that case as in the present one, a prior mortgagee sued on his mortgage without making the second mortgagee a party and in execution of the decree obtained by. him purchased the property himself and subsequently the second mortgagee also sued on his mortgage without making the prior mortgagee a party and purchased the property in execution of the decree. A suit was then brought by the second mortgagee to redeem the prior mortgagee-purchaser more than twelve years after the due date of his mortgage. It was held that the second mortgagee as purchaser in execution of the decree obtained on his mortgage acquired only the right which he had under his second mortgage and that he can enforce his rights on the second mortgage by suit as against the prior mortgagees only within the period of twelve years from the due date of his mortgage as provided for in Article 132 of Schedule II of the Indian Limitation Act. Applying this decision to the present case, I hold that the plaintiff's suit is barred by limitation. It was then suggested that Article 97 would apply, but the point was not pressed by the learned vakil for the appellant.

3. The Second Appeal fails and is dismissed with costs.


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