1. Defendant No. 1 in 1908 gave a mortgage to one Jagamma, who assigned it to plaintiff No. 1's natural father. The amount secured by the mortgage was Rs. 1,000 and it was repayable in ten annual instalments of Rs. 110 each, together with interest at 12 per cent. There was however a clause in the deed, which provided that, if two successive instalments remained unpaid, the mortgagor should
without having regard to the future instalments, pay all the amount of principal and interest due in one instalment.
2. It is over the effect of this clause that controversy has arisen. Two successive its almente fell into arrear and the assignee mortgagee sued and obtained a decree for their recovery. This was in the Court of the Additional District Munsif, Masulipatam. In 1923 on 24th June his successor is title the present plaintiff No. 1, brought a suit to recover the whole balance due from the mortgagor and his sons. He was met with the plea that his suit was barred by Rule 2, Order II, Civil Procedure Code. The cause of action, it was pleaded, arose when the first two instalments fell into arrear and he should have brought a suit for the whole amount due and not for two instalments alone. This plea found favour with the District Munsif, who, following two decisions of the Judicial Committee, dismissed the suit. The Subordinate Judge on appeal reversed his judgment and decreed the suit, pointing out that the two decisions relied on were in cases where suits had been filed after the entire mortgage money had fallen due. The same plea is now raised in second appeal. Prima facie, and apart from authority, it would seem clear enough that in a case of this kind, the mortgagee has two alternative courses open to him, either to enforce the penalty, which would be advantageous to himself or to stand on the original deed, which would be rather to the advantage of the mortgagor. And if he elects to adopt the latter course, it cannot lie in the mouth of the mortgagor to maet his suit on the mortgage with the objection that he is barred because he did not adopt the former. The leading case on the point in this Presidency is Nardnna v. Ammani Amma 35 Ind. Cas.418 : 39 M. 981 : 4 L.W. 77 : 20 M.L.T. 174 : (1916) 2 M.W.N. 125 : 31 M.L.J. 865.
3. The question then raised was one of limitation under Article 132, Limitation Act, but the rule laid down ia equally applicable to the present plea of bar by Rule 2, Order II. What was laid down was this that a mortgagee is not bound to take advantage of a ppnal clause in the bond and that a suit brought by him within 12 years from the date originally fixed for payment, though beyond 12 years from the date of the first default, was not barred by limitation. The rule has been dissented from in several Allahabad cases, beginning with Gaya Din v. Jummanalal 28 Ind. Cas. 910 : A.I.R. 1915 : All. 189 : 37 A. 400 : 13 A.L.J. 510 (F. B.) and in a Bombay case, Srinivasa Laxman Naik v. Chaubasapagowda Basangowda 72 Ind. Cas. 290 : A.I.R. 1923 Bom. 201 : 25 Bom. L.R. 206, but has been generally followed in Madras till recently. In Mukyaprana Bhatta v. T.N. Kelu Nambiyar 112 Ind. Cas 270 : A.I.R. 1928 Mad. 70 : (1929) M.W.N. 204 Ramesam and Jackson, JJ. held in respect of a bond very closely resembling that now under consideration, that the mortgagee having sued to recover the first four instalments in arrear, was barred by Rule 2, Order II from suing to recover further instalments in arrear Ramesam, J. who delivered the leading judgment, expressed it as his opinion that the Madras view was wrong and the Allahabad and Bambay view was right. At the same time, he thought that in certain cases where the deeds contained words like 'when required' or 'when you require' or if you choose,' it would be easy to hold that they did give an option to the mortgagees. As to that we agree with Venkatasubba Rao, J., in the next case to be cited that that is a distinction without any real difference; the option is there, whether it is expressed or not. The case in question is J. P. Rego v. Phillip Tauro 120 Ind. Cas 853 : A.I.R. 1929 Mad. 371 : 56 M.L.T. 580 : (1929) M.W.N. 208 : 29 L. W. 400 : Ind. Rul. (1930) Mad. 53. The Judges composing the Bench. Ramesam and Venkatasubba Rao, JJ. arrived at the same result, but by absolutely different processes of reasoning, It was the case of a mortgage which was to be discharged in four instalments, with a proviso that, if any instalment fell into arrear, the whole amount became recoverable. There were other provisions, but that is the general purport of the deed. The mortgagor defaulted on the first instalment and the mortgagee sued and got a decree for the amount due on it. Later he sued to recover the other instalments and1 was met with the plea that his suit was barred by Rule 2, Order II, Oivil Procedure Code. Ramesam, J,, reviewed all the decisions and again expressed dissent from Naranna v. Ammani Amma 35 Ind. Cas. 418 : 39 M. 981 : 4 L. W. 77 : 20 M.L.T. 174 : (1916) 2 M.W.N. 125 : 31 M.L.J. 865.
4. He, was able however, to find for the appellant on another ground, Venkatasubba Rao, J., agreed in allowing the appeal, but he did so on the ground that Naranna v. Ammani Amma 35 Ind. Cas. 418 : 39 M. 981 : 4 L. W. 77 : 20 M.L.T. 174 : (1916) 2 M.W.N. 125 : 31 M.L.J. 865 had been correctly decided. It was on account of this difference in opinion that the present appeal was referred to a Bench. We may say at once that, in our judgment, Venkatasubba Rao, J., came to the right conclusion and we oncur entirely in his observations on pages 591 and 59. Pages of. 56 M.L.J.--[Ed.]
The matter, 'he said', may be put somewhat thus: The plaintiff has an option to enforce the clause or not at his pleasure. It is open to him to avail himself of that option or to waive it and there is a third alternative namely, it is equally open to him not to make election. He may by act or word shown that he elects to avail himself of the benefit, and then he determines his election for ever. He may similarly indicate that he waives the option, and in that case again, ho cannot afterwards change his mind. Then there is the third alternative, where he makes no election, retaining the right either to exercise the power or to waive it and this he may retain till the suit is filed. Construing Order II, Rule 2 in the light of this principle, it cannot be said of a person, that on the date of the first suit he became entitled to sue for the whole amount, unless he had previously elected by toe word or act to take advantage of the default clause.' If he had previously done nothing, that is, made no election, the act involved in bringing in the first suit for a single instalment amount s to a waiver on his part of the benefit reserved under that clause. If, again, after the default has occurred, he keeps the question open and does nothing, but finally sues for the whole amount, the fact that he so sued, shows that he has waived the benefit reserved by him under the contract.
5. He referred to two decisions of the Judicial Committee as tending to Buppott his view. One of fcberr, Pancham v. Anmr Hussain 99 Ind. Cas. 650 : A.I.R. 1926 P. C. 85 : 53 I. A. 187 : 48 A. 457 : 24 A. 1,3. 736 : (1926) M.W.N. 520 : 24 L. W. 241 : 31 C.W.N. 321 (P. C.), was pronounced in an appesl from a judgment of the, Allahabad High Court reported as Pancham v, Aniar Hussain 63 Ind. Cas. 441 : A.I.R. 1921 All. 296 : 43 A. 596 : 19 A.L.J. 592. It is true that the observations relied on were made obiter, and that their Lordships of the Judicial Committee were careful to point, out that they were not deciding that the view of the Allahabad High Court was wrong, but it if, we think irnpoBPible to read what tbey said without feeling that they entertairied the gravest doubtsbto the correctness of that view. To quote from page 483 Page 48 A.--[Ed.]
applying certain previous decisions of that court and in particular a Full Heneh decision in Gaya Din v. Jummanalal 28 Ind. Cas. 910 : A.I.R. 1915 : All. 189 : : AIR1915All189 : 37 A. 400 : 13 A.L.J.510 (F. B.), the High Court held that, under a clause in the above from, a single default on the part of the mortgagors without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even, it would appear, against their desire operates eo instanti, to make the money secured by the mortgage 'become due,' so that all right of action in respect of the security is finally barred 12 years later. All this the High Court held, notwithstanding that the mortgage is for a term certain, a provision which may be as much for the benefit of the mortgagees as of the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees. The decision also apparently procseds upon the view that the words of the English Limitation Act and thn English decisions thereon apply without question to the words of Article 132, Limitation Act, a conclusion which as it seems to thoir Lordships, may involve and on the critical point when applied to such a proviso as the present, a large assumption.
6. It is significance that in Naranna v. Ammani Amma 35 Ind. Cas. 418 : 39 M. 981 : 4 L. W. 77 : 20 M.L.T. 174 : (1916) 2 M.W.N. 125 : 31 M.L.J. 865, Sehagiri Ayyar and Napier, JJ., pointed out that some of the Indian decisions seemed to hava taken it for granted thai; the words ox Article 75 should be imported into Article 132, an assumption which they condemned as unsound. We will refer to only one other Indian case Mukhdeo Singh v. Harakh Narayan Singh 134 Ind. Cas.209 : A.I.R. 1931 Pat. 285 :12 P.L.T.755: A. Ind. Rul. (1931) Pat. 465 : 11 Pat. 112, where the Judges, following the course of decisions in that Province, held:
(A) that, where an instalment mortgage-deed fixed the time by which the mortgage money and interest thereon were to be paid and a clause was inserted, for the benefit of the mortgagee, that, if any of the instalments due were not paid in time, the mortgagee would be at liberty to call in the entire money, the effect of such a stipulation was that he had successive or recurring causes of action and it was left to his option to avail himself of any one of them.
(B) that the mortgagee's option to call in his money at once or to stand on the original contract need not be express, but can be implied from the terms of the bond.
7. In the result, we must follow the ruling in Naranna v. Ammani Amma 35 Ind. Cas. 418 : 39 M. 981 : 4 L.W. 77 : 20 M.L.T. 174 : (1916) 2 M.W.N. 125 : 31 M.L.J. 865 and the course of decisions in this Court and hold that, in this case, the plaintiff's suit was not barred by Rule 2, Order II, Civil Procedure Code. He was under no obligation to enforce the forfeiture; for no man is obliged to enforce a forfeiture. The second appeal is dismissed with costs.