1. This is an appeal by the plaintiff against the decree of the Court of the Subordinate Judge of Madura dismissing his suit for the recovery of Rs. 5,100 by the enforcement of a charge on the properties mentioned in the plaint schedule. These properties originally belonged to one Mecca Meera Levvai Rowther. He had executed in favour of one Srinivasa Ayyar, two mortgages on 21st December, 1910 and 25th September, 1912, for Rs. 2,000 and Rs. 3,000-respectively. The properties in suit and other properties were purchased by the plaintiff in 1920, from one Sikandar Rowther to whom the original owner had alienated these and other properties in 1918.
2. One Syed Muhammad Rowther, a creditor of the original owner, brought a suit O.S. No. 24 of 1917 on the file of the Court of the Subordinate Judge of Madura to recover an amount due to him and obtained an attachment before judgment of the properties of the debtor including the suit properties, which were actually attached in March 1917. Eventually he obtained a decree in the suit and his legal representatives brought the attached properties to sale and purchased them themselves on 8th April, 1929. The purchase by the plaintiff was therefore after this attachment before judgment. When the auction purchasers proceeded to obtain delivery of the properties, they were obstructed by the plaintiff, who was in possession under his purchase from Sikandar.
3. Srinivasa Ayyar obtained a decree for sale in O.S. No. 146 of 1922, Sub-Court, Madura, on the foot of the two mortgages in his favour above-mentioned and assigned this decree to one Narayanaswami Ayyar. There was also a mortgage in favour of one Nagappa Chettiar executed by the original owner in 1917. The plaintiff claiming to have discharged these encumbrances urged in the execution proceedings for delivery that in any event he was entitled to remain in possession till he was reimbursed in the amount paid by him to discharge the encumbrances subsisting on the property. The lower Court held that the purchase by the plaintiff could not prevail against the auction purchasers but directed the purchasers to pay to the plaintiff the amount alleged to have been paid by him in discharge of the mortgages on the property, before they obtained possession. The auction purchasers preferred an appeal to this Court, C.M.A. No. 465 of 1930. Madhavan Nair and Jackson, JJ., agreed with the contention on behalf of the auction purchasers that they were entitled to the possession of the properties unconditionally because the mortgages which the plaintiff claimed to have discharged were simple mortgages and not usufructuary mortgages. They therefore set aside the order of the lower Court and ordered that possession of the properties should be delivered to the appellants before them free from the resistance of the present plaintiff. With regard to his claim that he was entitled to be paid the amount which went to discharge the mortgages, the learned Judges observed as follows:
Mr. Seetharama Rao argues that as the respondent has discharged various mortgages the appellants may be asked to pay him in these very proceedings the amount of the mortgages discharged by him; but we think that as the respondent has no title to remain in possession of the property and as the appellants' right is undisputed he should enforce his right to recover the mortgage amount, by other appropriate proceedings. However, to safeguard his rights we will declare and this is not' objected to by the appellants that the respondent will have a charge on the mortgaged properties with respect to the amount paid for the discharge of the various mortgages but in any proceedings-which he may take to enforce his rights it is only right to say that the appellants will be entitled to raise whatever objections they might have raised on the date when they became the purchasers of the equity of redemption in the properties on 8th April, 1929.
The decretal order gives effect to this direction and contains a declaration that the plaintiff do have a charge for the amounts paid by him to discharge the various mortgages.
4. The date of the judgment and decree of the High Court in the C.M.A. was 28th August, 1931. In 1937, the properties in suit were purchased by the present respondent from the auction purchasers. On 13th August, 1943, the plaintiff instituted the suit out of which this appeal arises for the recovery of a sum of Rs. 5,100 (to which amount he confined his claim) by enforcement of the charge thus declared by the High Court against the respondent who had become the purchaser of the properties.
5. The learned Subordinate Judge of Madura held in favour of the plaintiff on all material issues except with regard to the plaintiff's claim in so far as it related to the discharge of the mortgage in favour of Nagappa Chettiar. But having regard to the fact that though the total claim which the plaintiff could make in respect of the amounts alleged to have been paid by him amounts to over Rs. 15,000 yet he has chosen to confine his claim to Rs. 5,100, Mr. Seetharama Rao the learned Counsel for the appellant intimated that it was not necessary to attack this finding. The learned Subordinate Judge, however, dismissed the suit on the ground that it was barred by limitation. The plaintiff appeals.
6. Admittedly the article applicable is Article 132 of schedule I to the Limitation Act. The starting point according to the third column is ' when the money sued for becomes due.' The several alternative dates which may be pressed into service on behalf of the appellant or the respondent are:
(1) The date when the amounts became payable under the mortgage;
(2) The date when according to the plaintiff payments were made in discharge of the mortgage;
(3) The date of the purchase by the defendant's predecessors in execution of the decree in O.S. No. 24 of 1917, that is 8th April, 1929;
(4) The date of the disposal by the High Court of C.M.A. No. 465 of 1930, i.e., 28th August, 1931; and
(5) The date when the plaintiff was dispossessed of the suit properties, that is, 30th November, 1931.
The suit would be barred unless either of the last two alternatives is taken as the starting point. The payments were in 1923 and any suit on the foot of the mortgages themselves would be hopelessly barred on the date of the institution of the present suit.
7. For the appellant, a recent decision of the Privy Council in Batey Krishna v. Parsotam Das (1944) 2 M.L.J. 330 : L.R. 71 IndAp 153 : I.L.R. (1944) All. 654 (P.C.) was relied on for the position that the date of the High Court's decree is the proper starting point. In our opinion this decision should govern the present appeal. In that case the plaintiff became owner of certain property by virtue of a purchase on 27th July, 1910. In 1909 the original owner had executed a mortgage which was payable in 1912 and in 1915 he executed another mortgage over a part of the properties already mortgaged. There was a suit instituted on the mortgage of 1909 and a decree for sale obtained. In order to save the properties from being sold in auction, the plaintiff paid to the mortgagee-decree-holder in 1917 the decretal sum. The plaintiff also redeemed another mortgage which had been executed by the original owner in 1915 by a payment made in 1917. There was then a suit filed by subsequent mortgagees for foreclosure. To this suit the plaintiff was also made a party and he put forward a claim in respect of the payments made by him to discharge the prior encumbrances. This claim was recognised and a charge was declared in his favour and presumably incorporated in the decree. The plaintiff thereafter brought a suit for the enforcement of the charge within 12 years of the decree in the foreclosure suit but beyond 12 years of the payments made by him. The Allahabad High Court dismissed the suit as barred by limitation because it was beyond 12 years both from the date when the mortgages discharged by him became payable and from the date of payment. Their Lordships of the Judicial Committee allowed the appeal and held that the foreclosure decree created a charge in favour of the plaintiff which could be made the basis of his suit. It was contended before them that the decree only declared a charge which had existed before but did not create one, but their Lordships were unable to accept this argument. They say:
The plaintiff by making the two payments mentioned above had subrogated himself to the rights of the mortgagees whom he paid off and the rights which he had thus obtained became merged in the decree passed by the Subordinate Judge in the foreclosure suit. In the circumstances it is clear to their Lordships that the rights which the defendants have obtained can only be subject to the qualification of the rights of the plaintiff, i.e., a charge in favour of the plaintiff must be held to have been created by the final decree in Suit No. 13/39 of 1927 (the foreclosure suit).' The facts of the present case are similar. Here too though it may be said that the plaintiff by reason of the payments had the right to recover them, it must be held that his right became merged in the order of the High Court which declared a charge in his favour. In this view it is unnecessary to refer to the decisions which deal with the difficult question whether the starting point of limitation for a suit to enforce the right of subrogation by a puisne encumbrancer is the date of payment by him in discharge of the prior encumbrance or the date when the prior encumbrance itself became payable.
Mr. Panchapagesa Sastri for the respondent tried to whittle down the declaration granted by the High Court in favour of the plaintiff to a mere observation or obiter dictum which could not be made the foundation of the present suit. We do not agree with him. The learned Judges make it abundantly clear that they were granting a declaration to safeguard the rights of the plaintiff who was indisputably entitled to the right on account of his discharge of the mortgages on the property. It is not a case of a mere observation because there was a specific direction incorporated in the decretal order.
8. We do not also agree with the respondent that in respect of this declaration it is open to him to urge that on the date of the order of the High Court the appellant had no subsisting charge. An acceptance of this argument would mean the negation of a right declared by the High Court. We do not understand the qualification made by the High Court allowing the respondent's predecessors to raise objections which they might have raised on the date of their purchase of the equity of redemption in Court auction to mean that such objections could be in the total denial of the plaintiff's claim.
9. Mr. Panchapagesa Sastri relied on a decision of Horwill, J., in Perumal Reddiar v. Suppiah Thevar : AIR1945Mad500 , which no doubt was after the pronouncement of the judgment of the Privy Council in Batey Krishna v. Parsotam Das (1944) 2 M.L.J. 330 : L.R. 71 IndAp 153 : I.L.R. (1944) All. 654 (P.C.), but in that case there was no question of an antecedent declaration of a charge in favour of the plaintiff as in the present case.
10. It was also urged for the respondent that the date of the purchase by the respondent's predecessors in execution of the decree in O.S. No. 24 of 1917, that is 8th April, 1929, should be the date from which time should be reckoned. It is true no doubt on that date there was a purchase by the defendant's predecessors but the plaintiff continued to remain in possession and when his possession was threatened he did put forward a claim in execution proceedings and the Courts therein did work out the relative rights of the plaintiff and the auction purchasers and the final result was the declaration made in favour of the plaintiff by the High Court. From the date of that declaration the suit is in time.
11. We therefore disagree with the learned Subordinate Judge of Madura that the suit is barred by limitation and set aside the dismissal of the suit.
12. On the merits, a point was sought to be made for the respondent that the respondent would be entitled to a right of contribution or at any rate to a diminution of the liability because of two facts : (1) The exclusion of about 20 acres in item 2 from delivery of possession to the auction purchasers which continued to remain in plaintiff's possession and (2) about 2 acres 53 cents were purchased by one Venkateswara Ayyar at a revenue sale. This is a question which cannot be decided now for the first time. We do not find it raised specifically in the written statement and there was no issue framed to cover this contention. It also appears to us that this contention was presumably not raised because the plaintiff was claiming only an amount of Rs. 5,100 though his total claim was over Rs. 15,000 and any reduction on the grounds alleged by the respondent could not further reduce the plaintiff's already reduced claim.
13. We therefore allow the appeal and grant a decree in favour of the plaintiff for a sum of Rs. 5,100 with further interest at 6 per cent, from the date of plaint with costs here and in the Court below. Time for redemption--three months.