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(Chinta) Chandramma and anr. Vs. Gunna Seethan Naidu - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1931Mad542; (1931)61MLJ316
Appellant(Chinta) Chandramma and anr.
RespondentGunna Seethan Naidu
Cases ReferredVenkat Reddy v. Kunjappa Goundan I.L.R.
Excerpt:
- - but in 1927 he put in an application to amend his plaint in order to get a decree that defendants 1 and 2 should be given an opportunity to redeem or to deliver possession to him and that, if they failed to do so, he should have another decree for sale against them. put like that, if i may say so without offence, the contention appears to cross the border line of absurdity and is one to which on no principle or reasoning that i can see could we accede. 6. there we have the proposition clearly laid down that the purchaser of the equity of redemption is in those circumstances in the same position as a puisne mortgagee. , which, if i may say so with respect, put the position clearly and correctly. but as the suit to recover money based upon a mortgage of 1908 is clearly barred by.....reilly, j.1. defendants 3 and 5 in this case were co-parceners in a joint family, defendant 3 being the elder. in 1908 defendant 3 executed a simple mortgage in favour of one joganna for rs. 100, the date for payment being the 6th june, 1909. in 1909 defendant 5 sued defendant 3 for partition and got a decree for a half share of their property, including a half share of the property mortgaged to joganna. he also got a decree against defendant 3 for costs. his decree1 for costs he assigned to defendant 2, who in execution of it bought defendant 3's half share of the mortgaged property, in 1912. afterwards defendant 5 sold the half-share which he had got by his partition decree to defendant 1. in 1914 joganna sued for sale on his mortgage, making defendant 3 and no one else a party to that.....
Judgment:

Reilly, J.

1. Defendants 3 and 5 in this case were co-parceners in a joint family, defendant 3 being the elder. In 1908 defendant 3 executed a simple mortgage in favour of one Joganna for Rs. 100, the date for payment being the 6th June, 1909. In 1909 defendant 5 sued defendant 3 for partition and got a decree for a half share of their property, including a half share of the property mortgaged to Joganna. He also got a decree against defendant 3 for costs. His decree1 for costs he assigned to defendant 2, who in execution of it bought defendant 3's half share of the mortgaged property, in 1912. Afterwards defendant 5 sold the half-share which he had got by his partition decree to defendant 1. In 1914 Joganna sued for sale on his mortgage, making defendant 3 and no one else a party to that suit. He got a decree for sale, and in execution of that decree the plaintiff in the present suit eventually bought the mortgaged property in Court auction in 1924. The plaintiff in 1926 brought his present suit to recover possession; but in 1927 he put in an application to amend his plaint in order to get a decree that defendants 1 and 2 should be given an opportunity to redeem or to deliver possession to him and that, if they failed to do so, he should have another decree for sale against them. The District Munsif, who tried this suit, refused that application for amendment and dismissed the suit. On appeal the learned District Judge has allowed the amendment and remanded the suit to the District Munsif for fresh disposal. The appeal before us is against that order of remand.

2. Now, it will be seen, that defendant 5 got in his partition suit a decree for half of the property covered by the mortgage, and that half he subsequently transferred to defendant 1. Defendant 2 in Court auction bought defendant 3's half share. So in effect defendants 1 and 2, even if defendant 3 ever had an exclusive right to the property mortgaged, have become transferees of the whole equity of redemption. Neither defendant 5 nor his transferee, defendant 1, nor defendant 2 was a party to Joganna's mortgage-suit. The result of that, it cannot be disputed, is that that suit did not affect their rights in any way. ' As they were left out of Joganna's suit, he could, and the plaintiff after his purchase could, have brought another suit against defendant 1 or defendant 2 or both for sale on the mortgage, That is clear and was decided in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) Mad. 551 : 46 M.L.J. 391. The learned Judge recognises that; but he is of opinion that time would run for such a suit from the date of the mortgage decree. I think it is obvious that he is wrong in that point. Time for the second suit, if brought upon the mortgage, must run from the date for payment, or that date as extended by any circumstances which would extend it, and not from the date of the mortgage decree. That point was explicitly decided in T.C. Bose v. Obedur Rahman Chowdhury I.L.R. (1928) Rang. 297. Now it happens that a second suit for sale on this mortgage was time-barred, not only at the date when the plaintiff made his application to amend his plaint, but at the date when he put in his plaint itself in 1926. The learned District Judge has in effect by the amendment allowed the plaintiff to change the entire character of his suit, to change his suit for possession into a suit of another character, which was barred at the date when he put in his plaint. That is a kind of amendment which can obviously not be allowed.

3. But Mr. Govindarajachari for the plaintiff has tried to find another prop for the learned District Judge's decision. He represents that the amendment embodied not only a prayer for a decree for sale but for foreclosure and recovery of possession. The amendment itself does not put that explicitly. But, even if that was intended, as Mr. Govindarajachari has said, it would not be a prayer for foreclosure only. It is obviously a prayer for something more--for foreclosure and for possession. Apart from the fact that foreclosure and recovery of possession are not remedies available to a simple mortgagee, if such a liability could be imposed upon defendants 1 and 2, it would obviously be something more serious to them than liability to a decree for sale on the mortgage. If a decree for sale on the mortgage was still possible, that would mean that a preliminary decree might be made against them, giving them an opportunity to redeem, and, if they did not, the property would be put up for sale, and they would be entitled to any surplus over the amount due to the plaintiff. If they were liable to foreclosure and recovery, obviously there would be no surplus to go to them.

4. In that way their position would be worse than if they were liable to a decree for sale. And in another way they would be in a worse position. As I have mentioned, a suit for a decree for sale, was time-barred. But by this change of attack, this bringing in of a prayer for foreclosure, the plaintiff hopes to extend his limitation by five times. In that way again the position of defendants 1 and 2 would be much worse than if they were liable only to a decree for sale. Now, if defendants 1 and 2 had been impleaded in Joganna's mortgage suit, the only decree that could have been made against them would have been a decree for sale. As I have said, it cannot be disputed that that mortgage suit, to which they were not made parties, cannot affect, their interests; and yet, though that suit cannot affect their interests, we are asked to say in effect that their omission from that suit exposes them to liability much greater than could have been enforced against them if they had been parties to that suit. Put like that, if I may say so without offence, the contention appears to cross the border line of absurdity and is one to which on no principle or reasoning that I can see could we accede. It is impossible to reconcile the liability which on this contention the plaintiff wishes to force on defendants 1 and 2 with the principle that, because they were left out of Joganna's mortgage suit, that suit cannot affect them in any way and leaves them in just the position in which they were before it.

5. But Mr. Govindarajachari has been able to point out to us some decisions which support his contention. In Ram Prasad v. Bhikari Das I.L.R. (1903) All. 464 it was decided that in a similar position a purchaser of the equity of redemption, who had been left out of the mortgagee's suit for sale, was entitled only to redeem and, if he did not do so within the time fixed, foreclosure and recovery of possession could be enforced against him. In Birinchi Singh v. Sarado Prasad Mukherji I.L.R. (1923) Pat. 114 it was stated that parties in the position of defendants 1 and 2 here, had only a right of redemption, and, if they did not redeem, they could not resist recovery. There was a similar decision in Jugdeo Singh v. Habibullah Khan (1907) 6 Cal.L.J. 612 in which other Calcutta cases are cited in its support. With the very greatest respect I find myself unable to follow the reasoning in those cases. Their results appear to me to be entirely irreconcilable with the principle that the owner of the equity of redemption, if left out of the mortgagee's suit for sale, cannot be affected by that suit, though I may mention that principle is explicitly mentioned both in Ram Prasad v. Bhikari Das I.L.R. (1903) All. 464 and Jugdeo Singh v. Habibullah Khan (1907) 6 Cal.L.J. 612. But I do not think it is really necessary to discuss those cases in any detail. The principles have been made clear in cases of this Court. In Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 a Full Bench laid down that

The purchaser of the equity of redemption after the first mortgage and the second mortgagee both stand on the same footing with reference to their respective rights against the first mortgagee when they have not been impleaded in the suit instituted by him on his mortgage,

and

these rights are unaffected by the suit of the first mortgagee to which they were not made parties and the decree passed therein and the sale made in pursuance thereof.

6. There we have the proposition clearly laid down that the purchaser of the equity of redemption is in those circumstances in the same position as a puisne mortgagee. If he is left out of the first mortgagee's suit or the puisne mortgagee's suit he is just as much free of it as the puisne mortgagee would be if he was left out. In Chinnu Pillai v. Venkatasamy Chettiar I.L.R. (1915) Mad. 77 : 30 M.L.J. 347 K. Srinivasa Aiyangar, J., said:

In no case can a prior simple mortgagee extinguish the right of the puisne mortgagee by foreclosure. Sufficient attention has not always been paid to this important fact where it is said that the junior mortgagee is bound to redeem or his only right is to redeem or that the senior mortgagee can compel redemption.

7. We are entitled to substitute 'the purchaser of the equity of redemption' for 'the puisne mortgagee' or 'the junior mortgagee' in those remarks of Srinivasa Aiyangar, J., which, if I may say so with respect, put the position clearly and correctly. In Entholi Kizhakkikandy Kanaran v. Vallaih Koylil Unnooli I.L.R. (1907) Mad. 500 : 17 M.L.J. 431 a Bench of this Court decided that in a case such as this the purchaser in execution of a decree in a suit for sale on a mortgage cannot recover possession from the purchaser of the equity of redemption left out of that suit but can only bring a suit for sale against him.

8. That being the position, in my opinion the learned District Judge was wrong in allowing this amendment to be made. It was too late to make an amendment which would convert the plaintiff's suit into a suit for sale, and that was the only kind of suit which he was entitled to bring against defendants 1 and 2. As has been urged before us, the remand order is not one of those which is subject to appeal, and so the appeal which has been preferred cannot be allowed. But the appellants have been careful to put in also a revision petition. In my opinion this is certainly a case for the exercise of our powers of revision. When the learned District Judge allowed the suit by amendment to be converted into a suit of another character, which was barred at the time the plaint had been put in, he was in my opinion guilty of a material irregularity, which should be put right by revision. I therefore propose that the revision petition be allowed and the appeal dismissed and that the decree of the learned District Munsif dismissing the suit with coste be restored and that defendants 1 and 2 be allowed their costs before the District Judge and in their revision petition here. In the appeal to us in my opinion there should be no order as to costs.

Anantakrishna Aiyar, J.

9. I agree. In Jones on Mortgages, para. 1395, the learned author states that

While it is expensive and inconvenient to join all persons interested, in a mortgage suit, it is much more expensive and inconvenient to go on with such a suit omitting any such party.

10. The present case illustrates the wisdom of the observation made by the learned author, if the reported cases are not sufficient to bring home to litigants the importance of having all interested persons as parties to suits, relating to mortgages.

11. The 3rd defendant executed a simple mortgage over the suit property in favour of one Joganna on 6th June, 1908, Ex. D. The term fixed in the mortgage was one year, so that the amount became payable on 6th June, 1909. In 1909 the 5th defendant a co-parcener of the 3rd defendant, filed a suit for partition of the suit property making the 3rd defendant a party defendant to the suit. There was a decree in favour of the 5th defendant for a moiety of the suit property (mentioned in the present proceedings as the northern moiety). The 5th defendant in execution obtained possession of that half, and he assigned his rights over that portion in favour of the 1st defendant under Ex. III on the 12th May, 1914. The 5th. defendant also obtained a decree for costs against the 3rd defendant in that partition suit, O.S. No. 729 of 1909. In execution of that decree relating to costs, the 2nd defendant to whom that portion of the decree had been assigned by the 5th defendant brought the other moiety belonging to the 3rd defendant (the southern moiety) to sale and the 2nd defendant became himself the purchaser. The sale certificate (Ex. VI) is dated 11th November, 1912, and he got possession on the 30th November, 1912 (Vide Ex. VII). About two years afterwards, Joganna, the mortgagee from the 3rd defendant, filed a suit No. 478 of 1914 on the 2nd October, 1914, to recover the money due on his hypothecation bond Ex. D. He made as party defendant to his suit only the 3rd defendant, and not defendants 1 and 2 who at that time had become owners of the two moieties of this property and who were in possession of the same on the date of the plaint.

12. Having obtained a decree, the decree-holder assigned his rights to Janakiramayya who brought the properties to sale and the present plaintiff became purchaser of the properties in Court auction under Ex. A on the 22nd August, 1924. When he proceeded to obtain possession he was obstructed by defendants 1 and 2, and accordingly he instituted the original suit (which has given rise to the present appeal and revision petition) to eject the defendants and to recover possession of the properties from them. Defendants 1 and 2 raised the contention that the decree in Suit No. 478 of 1914 was not binding upon them, that defendant 3 had no rights in the property at the time of that suit; and they also pleaded that the decree in that suit could not in any way affect their rights and that the plaintiff's right to enforce the mortgage in favour of Joganna was barred by limitation. The learned District Munsif found this point in favour of defendants 1 and 2 and he dismissed the suit. In his judgment he recorded findings on the other issues that were framed in the case. On appeal by the plaintiff an application was made before the learned District Judge for an amendment of the plaint. The way in which the plaint was sought to be amended is this:

If the defendants 1 and 2 did not redeem the simple mortgage in Suit No. 478 of 1914 and did not deliver possession of the suit item, the plaintiff may be entitled to collect the decree amount of Rs. 702-14-6 with interest up to the date of the Court sale and costs by the re-sale of the suit item.

13. The learned District Judge, relying on the decision of this Court in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) Mad. 551 : 46 M.L.J. 391, allowed the plaintiff's prayer for amendment, and accordingly directed a re-trial of the suit on the basis of the amended plaint. Defendants 1 and 2 have preferred the present Civil Miscellaneous Appeal and Revision Petition.

14. As generally happens in such cases, counsel felt difficulty whether an appeal lies, and has accordingly filed an alternative Civil Revision Petition in respect of the same matter.

15. Now on these facts it follows that when Suit No. 478 of 1914 was instituted on 2nd October, 1914, the equity of redemption in the mortgaged property had become vested in defendants 1 and 2. For this purpose it is not necessary for us to canvass the position whether the property belonged absolutely to the 3rd defendant or belonged to the 3rd defendant and 5th defendant in moieties as members of a coparcenary. In the view most favourable to the plaintiff I am prepared to assume that defendant 3 was solely entitled to the suit property. The result, however, of the decree in Suit No. 729 of 1909 was directly to effect a statutory transfer in respect of a moiety of the property in favour of defendant 5 when it was decreed in that suit that the suit item should be divided into two moieties and in pursuance of the decree the northern moiety was delivered to defendant 5; so that, as regards that moiety, defendant 3 must be taken to have parted with his right in the same in favour of defendant 5 who in his turn conveyed his rights therein to defendant 1. Similarly, as regards the other moiety, defendant 3's remaining interest in the same, subject to the mortgage, passed to defendant 2 who purchased the same in execution of the decree for costs, which was passed by the Court in Suit No. 729 of 1909 against defendant 3 and in favour of defendant 5. Defendants 1 and 2 were also in possession on the date of the plaint in Suit No. 478 of 1914. It follows therefore that they were the persons entitled to the equity of redemption at the time of the prior mortgagee's suit in 1914. The mortgagor, defendant 3, had no interest in the property, and as far as the properties are concerned he could in no way represent the owners in whom the right had become vested at that time. The effect of a decree obtained by a prior mortgagee in a suit to which the owners of the equity of redemption were not parties had to be considered in various cases in this Court. It has been laid down that the general rule that no person should be affected prejudicially by proceedings to which he is not a party is applicable to mortgage suits also. In the words of James, L.J.:

It is difficult to see how a right of entry or cause of action against one man in respect of his property could be either lost or gained by proceedings against another man in respect of his property'--see Brojonath Koondoo Chowdry v. Khelut Chunder Ghose (1871) 14 M.I.A. 144.

16. Similarly in a later case in Umes Chunder Sircar v. Zahur Fatima (1890) L.R. 17 IndAp 201 : I.L.R. 18 C. 164 (P.C.) this is what the Privy Council says:

Persons who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they were never made parties.

17. The above general principle accordingly applies to cases of owners of the equity of redemption not made parties to the prior mortgagee's suit.

18. The learned Advocate for the plaintiff (respondent) however argued that the result would only be that the right of redemption which defendants 1 and 2 had should not be taken to have been lost to them, and he urged that that is their only right after the decree in the mortgage suit aforesaid. I think it is too late in the day to contend for such a proposition. The question was considered by a Full Bench of this Court in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 where it was held that none of the rights of persons who were omitted to be made parties would be affected by reason of a decree obtained behind their back. It was also suggested by the plaintiff's learned Advocate, Mr. Govindarajachari, that the present is a case where the person left out was not a puisne mortgagee but a purchaser of the equity of redemption. If there is any difference, it seems to me that the effect of the difference would be more against his client than in his favour; but I need not stop to enquire whether there is any material difference on this point between the case of a puisne encumbrancer left out and a subsequent purchaser of the equity of redemption left out in the circumstances, for in the Full Bench case in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 the learned Judges stated the second proposition, which they took to be established, as follows:

The purchaser of the equity of redemption after the first mortgage and the second mortgagee both stand on the same footing with reference to their respective rights against the first mortgagee when they have not been impleaded in the suit instituted by him on his mortgage.

19. It is therefore not possible to draw any difference between the position of a subsequent mortgagee and a subsequent purchaser of the equity of redemption so far as the principle now sought to be made applicable is concerned. Then, the learned Advocate argued that if they had been made parties they would be entitled to redeem, and that, he submitted, is their only right. That position again is answered by the Full Bench, the third proposition laid down by the Court being that

those rights (rights possessed by persons who are not made parties to such suits) are unaffected by the suit of the first mortgagee to which they were not made parties and the decree passed therein and the sale made in pursuance thereof.

20. See also Chinnu Pillai v. Venkatasamy Chettiar I.L.R. (1915) Mad. 77 : 30 M.L.J. 347. If that be so, the question arises, what exactly are the rights of a puisne mortgagee or the owner of the equity of redemption in such circumstances. It is clear that the first mortgagee could not, by reason of his own wrong or default, acquire any higher rights than he had otherwise. A hypothecatee is not entitled to possession, nor is he entitled to any remedy by way of foreclosure. The substance of Mr. Govindarajachari's argument (if I followed him correctly) is that though as hypothecatee, the prior mortgagee is not entitled either to possession or to a remedy by way of foreclosure, yet as a result of the prior decree he has acquired these special rights. That is going in the teeth of the pronouncements made by authorities which are binding upon us. He cannot take advantage of his own wrong, he cannot acquire higher rights by reason of a litigation to which the owners of the equity of redemption were not made parties. That being so, if the puisne mortgagee or the owner of the equity of redemption be entitled to other rights and remedies over and above the right of redemption, such other rights and remedies would not be lost to them, and the plaintiff cannot be heard to say that those remedies were lost to them as a result of the suit to which they were not parties. Now the learned Advocate drew our attention to certain passages from three decisions where it is generally stated that persons in the position of defendants 1 and 2 have got the right to redeem. Nobody would think it worth while to quarrel, with such a proposition if it means what it states, namely, that they have got the right of redemption; but if it be intended to lay down that they have got only the right of redemption, then, both on principle and by virtue of authorities which are binding on us, that position does not seem to be tenable. In Chinnu Pillai v. Venkatasamy Chettiar I.L.R. (1915) Mad. 77 : 30 M.L.J. 347 Coutts Trotter, J., as he then was, observed as follows:

The principle is that of any number of mortgagees, the later can always redeem the earlier, but cannot be compelled to do so, and the earlier cannot redeem the later except by consent.

21. The matter is put very tersely by K. Srinivasa Aiyangar, J., at p. 85, where it is stated:

In no case can a prior simple mortgagee extinguish the right of the puisne mortgagee by foreclosure. Sufficient attention has not always been paid to this important fact, where it is said that the junior mortgagee is bound to redeem, or his only right is to redeem or that the senior mortgagee can compel redemption.

22. As has been already mentioned, the right to redeem is a right and not an obligation. If a person has got also other rights to exercise it is not open to a person in the position of the plaintiff to compel such person to exercise any one right rather than any other. It is therefore clear that the present plaintiff would not be entitled to claim any rights higher than the rights of the' original mortgagee Joganna and could not derive special rights by virtue of a suit filed by Joganna against persons other than the real owners of the equity of redemption.

23. This leads to the consideration of the question as to what exactly are the remedies open to an auction-purchaser in the position of the plaintiff. Sadasiva Aiyar, J., in the case reported in Lakshmanan Chetty v. Muthayya Chetty (1919) 40 M.L.J. 126 would seem to have been of opinion--I say 'opinion' because it was not necessary for the decision of the case--that a second suit based upon the original mortgage was not available in the circumstances. That question had to be considered in a later case by a Bench of this Court, Kumaraswami Sastri and Waller, JJ., in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) Mad. 551 : 46 M.L.J. 391. After referring to the observations of Sadasiva Aiyar, J., in the case already mentioned, the learned Judges proceeded to consider whether there is anything in the Code or any other provision of law which would disentitle the plaintiff from maintaining a second suit based upon the original mortgage. They came to the conclusion that he could do so, and, if I may say so with respect, quite correctly. The circumstance that the mortgagee filed a suit against a wrong person does not affect the rights of the real owners of the equity of redemption. If it does not affect them at all, one fails to see how they could be heard to say that by virtue of the prior suit, which admittedly does not affect them, a (second) suit against them is not maintainable. So far as they are concerned, the second is the only suit against them and the first suit and the proceedings connected with the same must be taken to be 'non est' in the eye of the law. The extreme contention urged on both sides is unsustainable. It being therefore clear that a second suit is maintainable to recover money due on the mortgage, after making the necessary persons interested in the equity of redemption parties to the suit, the question will then arise as to the exact remedy that they would be entitled to in such a suit. Before considering this, I may just mention that the maintainability of the second suit in such circumstances has been accepted by the Bombay High Court in Dattatraya v. Venkatesh : (1922)24BOMLR741 , by the Rangoon High Court in T.C. Bose v. Obedur Rahman Chowdhury I.L.R. (1928) Rang. 297 and by the Allahabad High Court in Lachmi Narain Das v. Hirdey Narain (1926) 24 All. L.J. 661. As I already mentioned, Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) Mad. 551 : 46 M.L.J. 391 is also an authority in favour of such a proposition. I may also state that as early as Entholi Khizakkikandy Kanaran v. Vallath Koylil Unnooli I.L.R. (1907) Mad. 500 : 17 M.L.J. 431 Boddam and Miller, JJ., were of opinion that a second suit for sale in such circumstances is maintainable and is the proper remedy.

24. Now in the second suit what is the remedy that the plaintiff is entitled to? For reasons already mentioned, he would not be entitled to recover possession, because the second suit is based on the original simple mortgage, and not on the footing of any decree--in the first suit--which ex hypothesi is not binding on the contesting defendants. Further, the second suit could not be to foreclose the defendants, because it is not a relief to which a hypothecatee is entitled. That being so, it is clear that the only remedy that the plaintiff in the circumstances would be entitled to is to recover his money by the sale of the hypothecated property, and that is the view that has found acceptance in all the cases I have mentioned above. No doubt the learned Advocate for the respondent is right in saying that the decisions in Ram Prasad v. Bhikhari Das I.L.R. (1903) All. 464, Jugdeo Singh v. Habibullah Khan (1907) 6 Cal.L.J. 612 and Birinchi Singh v. Sarado Prasad Mukherji I.L.R. (1923) Pat. 114 support the position adopted by the Lower Appellate Court. Of these, Ram Prasad v. Bhikhari Das I.L.R. (1903) All. 464 and Jugdeo Singh v. Habibullah Khan (1907) 6 Cal.L.J. 612 were prior to the Full Bench decisions of this High Court reported in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 and have been considered there; and the propositions enunciated by the learned Judges of the Full Bench involve the inference that the decisions in those two cases were not acceptable to them. We are bound by the Full Bench decision, and that being so, we cannot accept the contention based on those other decisions cited by the learned Advocate for the respondent.

25. As we have come to the conclusion that a suit for sale is the only relief to which the person in the position of the plaintiff is entitled, the question arises whether the Lower Appellate Court was right in having allowed the plaint to be amended by also adding a prayer for the recovery of money by the sale of the properties. The learned District Munsif declined to allow the amendment on the ground that the suit to recover money by sale of the mortgaged property would be barred by limitation; however the learned District Judge allowed the amendment; but as the suit to recover money based upon a mortgage of 1908 is clearly barred by limitation (because the period of limitation began to run from 6th June, 1909, when the amount became payable, and the present plaint was filed only in 1926), there is no use in allowing the plaint to be amended. The suit being one to recover money due upon a mortgage, the period of limitation applicable to such a suit is Article 132, Limitation Act. Of course, proceedings in the prior suit or any other proceedings might be relied on if there be acknowledgment of the plaintiff's right, or there might be part payments, which might save limitation. But it is not pretended that there are any such in the present case, and neither the plaint nor the application for amendment in the case before us suggests the existence of any such factor which would save limitation. The suit being therefore prima facie barred by limitation, in so far as the prayer to recover money by the sale of the properties is concerned, I think that the present is a case where we should interfere in revision, inasmuch as the learned Advocate for the respondent is right in contending that an appeal does not lie having regard to the wording of Order 43, Rule 1 (w), Civil Procedure Code. I am of opinion that the present is pre-eminently a case for interference in revision, if the result of the amendment would be to direct a plaint to be tried which, on the face of it, is barred by limitation. As remarked by Miller, J., in Sree Krishna Doss v. Chandookchand I.L.R. (1908) 32 M. 334 : 19 M.L.J. 307 the High Court will interfere in revision where there is no doubt as to the rightis of the parties, and the result of non-interference will only be to multiply proceedings and to direct an enquiry which should result in nothing favourable to the plaintiff having regard to the clear law applicable to the case. We have followed that decision of Miller, J., recently, and I think that the present is a case where we should interfere in revision.

26. I may state that this question as regards the rights of parties and how far the (Subsequent suit should be only to recover money due on the mortgage has been elaborately discussed by the learned judge, Mookerjee, in Lachmi Narain Das v. Hirdey Narain (1926) 24 All. L.J. 661.

27. I do not think it necessary to refer in detail to the observations in that case, nor to the observations in T.C. Bose v. Obedur Rahman Chowdhury I.L.R. (1928) Rang. 297 which are also to the point.

28. In this view I take, I need not consider in this case the principles which should guide the Court in fixing the amount that should be decreed to the plaintiff, if the claim be not barred by limitation.

29. The decision in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) Mad. 551 : 46 M.L.J. 391 relied on by the learned District judge only lays down that a second suit is maintainable, in the circumstances, to recover money by sale of the mortgaged properties. No question of limitation arose in that case, because the mortgage deed was dated in 1914 and the second suit was instituted in 1919, before the expiry of 12 years. That case is therefore no authority on the question of limitation which arises in this case.

30. In my opinion the learned Judge's order allowing the amendment of the plaint and remanding the suit for re-trial is not sustainable and should be set aside.

31. In the exercise of our powers of revision, we allow C.R.P. No. 13,37 of 1929 and reverse the decision of the learned District Judge and restore the decision of the District Munsif with costs in the Lower Appellate Court, and in the revision petition. As my learned brother has stated in his judgment there will be no order as to costs in the Civil Miscellaneous Appeal No. 359 of 1929.


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