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Peri. Su. Aru. Peria Karuppan Chettiar Vs. Doraiswamy Naicken and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1940Mad461; (1940)1MLJ134
AppellantPeri. Su. Aru. Peria Karuppan Chettiar
RespondentDoraiswamy Naicken and ors.
Cases ReferredSinga Raja v. Pethu Raja
Excerpt:
- - 5. the second ground urged for getting over the bar of limitation is that the first respondent's decree must be deemed to have been satisfied by the private sale of the property to him in july, 1926, and that it was only when the appellant purchased the property in court auction in execution of his own decree in july, 1931, that the liability under the preliminary mortgage decree was revived. pethu raja (1918)35mlj579 .therefore, the preliminary mortgage decree could not be deemed to have been satisfied by the private purchase from the mortgagor so as to stop the running of time, and there was nothing to preclude the respondent from filing the application for the passing of the final decree after the 8th of october, 1926. this contention also fails......arising in this appeal is one of limitation. the first respondent having obtained a preliminary mortgage decree on 8th april, 1926, filed an application for the passing of the final decree for sale on 27th of october, 1933. the appellant who had even before the institution of the mortgage suit attached the same property in execution of his money decree and purchased it in execution on 6th july, 1931, opposed the application as barred by limitation. both the courts below have held that the application is not barred and passed a final decree for sale. against that decree this appeal has been preferred.2. the appellant's learned counsel contends that both the grounds on which the court below has overruled the plea of limitation are erroneous and unsustainable, while the first.....
Judgment:

Patanjali Sastri, J.

1. The only question arising in this appeal is one of limitation. The first respondent having obtained a preliminary mortgage decree on 8th April, 1926, filed an application for the passing of the final decree for sale on 27th of October, 1933. The appellant who had even before the institution of the mortgage suit attached the same property in execution of his money decree and purchased it in execution on 6th July, 1931, opposed the application as barred by limitation. Both the Courts below have held that the application is not barred and passed a final decree for sale. Against that decree this appeal has been preferred.

2. The appellant's learned Counsel contends that both the grounds on which the Court below has overruled the plea of limitation are erroneous and unsustainable, while the first respondent's learned Counsel maintains that they are valid. The time fixed for payment under the preliminary decree having expired on 8th October, 1926, the application for final decree made in October, 1933, is prima facie barred but the respondent invokes Section 20(2) of the Limitation Act and contends that, inasmuch as he was placed in possession of the mortgaged property in pursuance of a private sale from the mortgagor in July, 1926, pending the attachment in execution of the appellant's decree, his receipt of the rents and profits of the property should be regarded as payments by the mortgagor within the meaning of that section so as to extend the period of limitation each time such rents and profits were received. This contention cannot be accepted as it has been held by this Court in Mohamad Yusuf v. Narayana Pillai : AIR1937Mad642 and Fallesatha Banu v. Muhammad Rashidhuddhin Quraishi (1934) 153 I.C. 170 that the provisions of Section 20(2) apply only when the mortgagee is in possession of the property and receives the rents and profits thereof as a mortgagee but not where he is in possession and receives the rents and profits in his own absolute right as against the mortgagor, though it may turn out to be the case that such right cannot prevail against the title of a third party. In view of these decisions, it cannot be said that the receipt of rents by the respondent as the owner of the property under his purchase from the judgment-debtor was a payment within the meaning of Section 20.

3. The first respondent's learned Counsel has placed reliance in support of his contention on Bamacharan v. Nimai (1921) 35 C.L.J. 58. But, in that case, the sale to the mortgagee was not completed so that the relationship of mortgagor and mortgagee between the parties still continued to subsist. The decision therefore does not assist the respondent in this case. It was distinguished on this ground in Mohamad Yusuf v. Narayana Pillai : AIR1937Mad642 .

4. The first respondent's counsel also relied on the decision of Horwill, J., reported in Mariyappa Nadar v. Ramanuja Naick : AIR1938Mad465 , but the facts of that case were entirely different and it has no application here as there is no question of estoppel or taking up of inconsistent positions.

5. The second ground urged for getting over the bar of limitation is that the first respondent's decree must be deemed to have been satisfied by the private sale of the property to him in July, 1926, and that it was only when the appellant purchased the property in Court auction in execution of his own decree in July, 1931, that the liability under the preliminary mortgage decree was revived. This argument proceeds, in my opinion, upon a misconception of the true position so far as the decree is concerned. There is no question here of setting aside any sale which previously operated as a satisfaction of the decree. The private purchase by the respondent was, to his knowledge, always subject to the infirmity that it was liable, by virtue of Section 64, Civil Procedure Code, to be superseded by the appellant bringing the property to sale in pursuance of his attachment in the execution of his own decree. It cannot therefore be said that there was any satisfaction of the decree and such satisfaction has since been set aside so as to revive that decree. Moreover, it has been held in this Court that Order 34, Rule 5 of the Code recognises only one method of payment, namely, payment into Court, of the amount fixed by a preliminary mortgage decree and that in default of such payment, the Court is bound on the application of the decree-holder to pass a final decree for sale - see Singa Raja v. Pethu Raja : (1918)35MLJ579 . Therefore, the preliminary mortgage decree could not be deemed to have been satisfied by the private purchase from the mortgagor so as to stop the running of time, and there was nothing to preclude the respondent from filing the application for the passing of the final decree after the 8th of October, 1926. This contention also fails.

6. The respondents' counsel lastly urged that, in any case, as there have been successive acknowledgments or payments under Sections 19 and 20, there can be no bar of limitation. He relies upon the payment of costs by the appellant as the fifth defendant in the mortgage suit in October, 1928, and the subsequent acknowledgment of the mortgage-debt in Ex. E, the execution application filed by the appellant in February, 1930, in which it was stated that the property was subject to the mortgage in favour of the first respondent. But the payment in October, 1928, cannot avail the respondent as it is not evidenced by any writing as required by Section 20 of the Limitation Act and it is clear that, if the payment in October, 1928, cannot be relied on, Ex. E will be of no use.

7. The appeal therefore succeeds and is allowed with costs throughout.

8. Leave to appeal granted.


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