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Narayana Ayyar Vs. Venkataramana Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad220
AppellantNarayana Ayyar
RespondentVenkataramana Ayyar and ors.
Cases ReferredIn Ramachandra Rayaguru v. Modhu Padhi I.L.R.
Excerpt:
transfer of property act - act iv of 1882, section 58(e)--'english mortgage'--covenant for reconveyance not limited to time stipulated for repayment of mortgage money--limitation act--act xv of 1877, section 19, schedule ii, article 147--suit for foreclosure and sale in the alternative or for sale--deposition in previous suit of a defendant acknowledging liability--acknowledgment by agent --authority of co-mortgagor, merely as such, insufficient--acknowledgment by managing member insufficient where original dealings have been with all the members of the undivided family. - .....applicable was article 132, on the ground that the words 'by a mortgagee for foreclosure or sale in article 147' referred only to a suit for foreclosure or sale in the alternative. we do not think this is the right construction of the article. for the reasons stated in the order of reference which we substantially adopt, we think the article applies to a suit by a mortgagee whether the suit is one for foreclosure (see sections 86 and 87 and paragraph 2 of section 88 of the transfer of property act), or one for sale (see paragraph 1 of section 88 and section 89 of the transfer of property act), and, in the former case, whether the prayer in the plaint is for foreclosure alone, or is coupled with a prayer in the alternative for sale in lieu of a decree for foreclosure.4. we do not.....
Judgment:

1. In our judgment the period of limitation for a suit for sale under the instrument id question in the present case is that prescribed by Article 147 of the second schedule to the Limitation Act.

2. In Ramachandra Rayaguru v. Modhu Padhi I.L.R. 21 Mad. 326 Shephard, J., dealt with the case upon the supposition that the instrument then before the Court was a charge not amounting to a mortgage and held that Article 132, which relates to suits to enforce by judicial sale payment of money charged on immoveable property, applied.

3. In the present case it is quite clear that the instrument is a mortgage. In the case referred to, Subrahmania Ayyar, J., was of opinion that the article applicable was Article 132, on the ground that the words 'by a mortgagee for foreclosure or sale in Article 147' referred only to a suit for foreclosure or sale in the alternative. We do not think this is the right construction of the article. For the reasons stated in the order of reference which we substantially adopt, we think the article applies to a suit by a mortgagee whether the suit is one for foreclosure (see Sections 86 and 87 and paragraph 2 of Section 88 of the Transfer of Property Act), or one for sale (see paragraph 1 of Section 88 and Section 89 of the Transfer of Property Act), and, in the former case, whether the prayer in the plaint is for foreclosure alone, or is coupled with a prayer in the alternative for sale in lieu of a decree for foreclosure.

4. We do not agree with the view of the Calcutta High Court that Article 147 applies only in the case of an English mortgage, and we agree with. the decisions of the Bombay and Allahabad High Courts, in the cases referred to in the order of reference.


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