(1) This is a defendant's appeal form a mortgage decree. He had executed the mortgage on 14-10-1950, charging premises No. 162-A West Masi St., Madurai, with the repayment of Rs. 45000 with interest at 14 annas per hundred rupees per mensem. It was further stipulated that Rs. 5000 should be paid within a period of 6 months form the date of the mortgage towards the principal and the balance of the principal should be paid within a period of two years form the inception, and that on default, interest should be calculated at the rate of 12 per cent; but if there was continued default, interest should be raised to 131/2 per cent. Admittedly, the sum of Rs. 5000 was paid within the time specified, but the balance remained totally unpaid. On 4-1-1952, the appellant and his wife borrowed Rs. 25000 and jointly executed a promissory note. On 16-1-1952, the appellant's wife deposited her title deeds relating to premises No. 162 West Masi St. This borrowing was therefore on a mortgage by deposit of title deeds. On 25-6-1952 again, both the appellant and his wife mortgaged their respective properties securing repayment of a sum of Rs. 8850. All the three mortgages were sum of Rs. 8850. All the three mortgages were in favour of the plaintiff bank. It instituted O.S. 112 of 1953 on the title of the Court of the Subordinate Judge, Madurai, to enforce the last two mortgages and obtained a decree against the appellant and his wife. It appears that this decree has been practically paid. The respondent then instituted on 16-4-11958 the suit out of which this appeal arises on the foot of the mortgage dated 14-10-1950. The suit seems to have been resisted by the appellant who was the sole mortgagor, on the ground that it was barred under the provisions of S. 67-A Transfer of Property Act, and that, in any case, the stipulation of interest was penal and contravened the provisions of the Usurious Loans Act, 1918. The court below negatives both grounds and decreed the suit, but allowing interest only at 12 per cent till the date of the decree.
(2) The above two grounds have been reiterated before us by Mr. Ramaprasada Rao, learned counsel for the appellant. He argues that S. 67-A of the Transfer of Property Act applies to he suit, because premises No. 162-A were the subject matter of the suit mortgage as well as the mortgage of June 1952. He says that the fact that the appellant's wife also had joined in the last mortgage and charged her property too for the whole debt did not make any different to the fact that so far as premises No. 162-A were concerned, the mortgagor was the same. He further contends that the whole object of S. 67-A is to avoid harassment to the same mortgagor against whom the same mortgagee holds more mortgages than one and can get the same kind of decree for foreclosure under S. 67. Though the argument is somewhat attractive, we are clear tit is not sound and cannot be accepted in view of the clear terms of S. 67-A. The section reads:
"A mortgage who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under S. 67 and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to he contrary, he bound to sue on all the mortgages in respect of which the mortgage money has become due".
For the application of this section, the mortgagee must be the same and so too the mortgagor. Further, the mortgagee must be able to consolidate mortgagor, so that he can get a consolidate the mortgages in his favour executed by the same mortgagor, so that he can get a consolidated mortgage decree instead of obtaining several decrees of the same kind on the different mortgages under S. 67. The section, appellant, aims at relieving harassment to a mortgagor who has executed more than one mortgage in favour of the same mortgagee. The section prevents such a mortgagee form obtaining on different suits several decrees for foreclosure against the same mortgagor. The question in this case is whether the appellant can be regarded as the same mortgagor within the meaning of S. 67-A in relation to the mortgage dated 25-6-1952. It is true that so far as premises No. 162-A are concerned, the appellant being the owner thereof, is the same mortgagor. But it must be remembered that the mortgage of 1952 cannot be regarded as having been executed by the same mortgagors. There is also the other point of view, namely, that a mortgage is one and entire, and it is not open for purposes of 1952 as in two parts, one relating to the premises No. 162-A and the other to premises No. 162. That clearly is not permissible. We are of the view therefore that where X mortgagees his property and then joins with Y and executes a second mortgage which charges not merely that property but also the property of Y, the two mortgages cannot be regarded as executed by the same mortgagors. More Ragunath v. Balaji Trimbak, ILR 13 Bom 45 and Rajanikanta v. Sounrendra Nath, 38 Cal WN 124 : (AIR 1934 Cal 421) which have been referred to by the court below, if we may say so with the respect, laid down the correct principle. These are cases where one co-owner executed a mortgage of his share followed by a second mortgage executed by that co-owner with one or more other co-owners on the entire property held in co-ownership, and it was held that he mortgagors were not he same Mr. Ramaprasada Rao argues that the principle will be different in the case of the persons who are not co-owners but independent owners for separate properties. We fail to see any basis for this distinction. In fact, in our view, the principle of those causes applies with greater force to the second category cases as here. It follows that he appellant's ground based on S. 67-A must fail. On that view, it is unnecessary to go into the other question of waiver which the court below adverted to.
(3) The other contention of Mr. Ramaprasada Rao, for the appellant, is that the penalty clauses providing for double enhancement of interests in cases of defaults are illegal, as the appellant is an agriculturist. We are unable to accept this contention. Let us assume without deciding that the appellant is an agriculturist for the purposes of the Usurious Loans Act. Even so, we do not think that the rate of interest actually allowed by the court below at 12 per cent up to the date of the decree can be regarded as usurious or penal. In Sevugan Chettiar v. Chinnasami Reddiar, in which there was a provision for interest at 24 per cent, the rate was held to be penal, but the Division Bench considered that 12 per cent could properly be allowed. That is what the court below has done in this case. We can see no reason to differ from it.
(4) The appeals dismissed. Mr. Ramaprasada Rao has made an imprisoned plea that the respondent had waited to institute the appellant is made to pay a large amount of interest and that in view of this we should relieve him of the costs of the appeal. We cannot accede to his request. The costs must follow the event in the absence of any special circumstance. The respondent will be entitled to his costs of this appeal. The appellant will have six months for payment of the decree amount.
(5) Appeal dismissed.