Skip to content


ShamsuddIn Bhuya and ors. Vs. on Death of Haider Ali Bhuya One of His Heirs Asadulla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1945Cal194
AppellantShamsuddIn Bhuya and ors.
RespondentOn Death of Haider Ali Bhuya One of His Heirs Asadulla and ors.
Cases ReferredBabulal Bay v. Bindhyachal Rai
Excerpt:
- b.k. mukherjea, j.1. this is an appeal under clause 15, letters patent and is directed against a judgment of jack j., dated 1st march 1937. passed in appeal from appellate decree no. 247 of 1933. the appellants before us are the plaintiffs in a suit for recovery of a sum of rs. 960 on enforcement of their rights of subrogation for having redeemed a prior mortgage existing upon the properties described in the schedule to the plaint. the material facts are not in controversy and may be briefly narrated as follows: in july 1901, there was a mortgage executed by one kazamuddin, predecessor of defendants 1 to 37 in favour of the predecessors of defendants 38 to 42, in respect of several items of property including the properties in suit, to secure an advance received from the mortgagees. on.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal under Clause 15, Letters Patent and is directed against a judgment of Jack J., dated 1st March 1937. passed in appeal from Appellate Decree No. 247 of 1933. The appellants before us are the plaintiffs in a suit for recovery of a sum of Rs. 960 on enforcement of their rights of subrogation for having redeemed a prior mortgage existing upon the properties described in the schedule to the plaint. The material facts are not in controversy and may be briefly narrated as follows: In July 1901, there was a mortgage executed by one Kazamuddin, predecessor of defendants 1 to 37 in favour of the predecessors of defendants 38 to 42, in respect of several items of property including the properties in suit, to secure an advance received from the mortgagees. On 17th February 1914, the mortgagees instituted a suit in the Court of the Munsif at Lakhipur, in the district of Noakhali to enforce their mortgage, and this was registered as Title suit No. 295 of 1914. A preliminary decree for sale was made in that suit on 20th January 1915, which was made final on 27th May 1918. After certain proceedings in execution, which are not necessary to narrate for our present purpose, the decree was put into execution in Title Execution Case No. 194 of 1929, and the mortgaged properties were put up to sale on 16th February 1930. Some time in 1918, when this mortgage suit was still pending, the mortgagor created a second mortgage in respect of the same properties in favour of one Peari Mohan Saha, and the latter assigned his rights as a mortgagee to the present plaintiffs. The plaintiffs who thus became endowed with the rights of a second mortgagee deposited in Court, the full amount due to the decree-holder under the decree in Mortgage Suit No. 295 of 1914 on 7th March 1930, which was before the date fixed for confirmation of the sale. On 2nd May 1930, they brought the present suit for recovery of the sum of money paid by them to redeem the first mortgagee to whose rights and powers they claimed to be subrogated. The suit was contested by defendants 11 and 14 only, and their contentions, in substance, were, that the plaintiffs were not entitled to any right by subrogation, and even if they had acquired any right, the suit was barred by limitation as being instituted more than twelve years after the due date of payment in the first mortgage bond.

2. The trial Court overruled both the contentions of the defendant and decreed the plaintiffs' suit. There was an appeal taken against this decision to the Court of the District Judge of Noakhali, and the learned Subordinate Judge who heard the appeal reversed the judgment of the trial Court and dismissed the plaintiffs' claim as being time-barred. There was a second appeal taken by the plaintiffs to this Court which was heard by Jack J. sitting singly. The learned Judge held that the plaintiffs had the rights of subrogation but were bound to enforce those rights within the same period of limitation that was available to the first mortgagee to sue upon his mortgage and as that period had long expired, the suit, so far as it claimed a decree for sale of the mortgaged properties, was barred by limitation. The learned Judge held, however, that the plaintiffs were entitled to a personal decree against the mortgagors for the sum of Rs. 960 paid by them to satisfy the decree on the first mortgage, and the decree of the lower appellate Court was modified accordingly. It is against this decision of Jack J. that the present appeal had been filed by the plaintiffs under Clause 15, Letters Patent. There has been no appeal by the defendants against that part of the judgment of Jack J. which gave the plaintiffs a personal decree against the mortgagors. The two questions which require determination in this appeal are: (1) Whether Section 92, T.P. Act is retrospective in its operation and the plaintiffs can claim the rights of subrogation under that section or under Section 74 of the old Transfer of Property Act? (2) Whether the present suit as a suit to enforce the rights of subrogation of the plaintiffs is within time?

3. The first question really does not present any difficulty. It is conceded by the learned advocate for the respondents that even if Section 92 of the present Transfer of Property Act is not attracted to the facts of this case, the plaintiffs could claim subrogation under Section 74 of the old Act. As, however, the question has been argued in full by the learned advocate appearing on behalf of the appellants, we desire to place on record our views upon it. It will be noted that the plaintiffs paid the amount due to the first mortgagee under his mortgage decree on 17th March 1930, whereas Section 92, T.P. Act, as it stands at present was introduced by the amending Act 20 of 1929 which came into force on 1st April 1930. The question is whether the plaintiffs can claim the benefit of Section 92 of the present Act. The judicial opinion on this point is not altogether uniform. The Allahabad High Court in the Full Bench case in Totaram v. Ram Lall : AIR1932All489 , has held that Sections 92 and 101, T.P. Act, as introduced by Act 20 of 1929 have retrospective operation. Reliance has been placed by the learned Judges upon Section 63 of the amending Act which lays down that:

Nothing (contained) in any of the following provisions, namely, Sections 3, 4, 9, 10, 15, 18, 19, 27, 30, Clause (e) of Section 31, Sections 32, 33, 34, 35, 46, 52, 55, 57, 58, 59, 61 and 62 shall be deemed in any way to affect: (a) the terms or incidents of any transfer of property made or effected before the first day of April, 1930; (b). . . . . . . .; (c) any right, title, obligation or liability already acquired or incurred before such date, or (d) any remedy or proceeding in respect of such right, title, obligation or liability; and nothing in any other provisions of this Act shall render invalid or in any way affect anything already done before the first day of April 1930, in any proceeding pending in a Court on that date; and any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued, as the case may be, as if this Act had not been passed.

4. Now, Sections 47 and 51 of the amending Act which introduced Sections 92 and 101 of the present Transfer of Property Act are not mentioned in the first part of Section 63. The mere fact that certain sections of the amended Act are expressly made non-retrospective does not necessarily show that the intention of the Legislature was to make the other sections retrospective in their operation. But there is this further provision in Section 63, namely, that the other sections would not be applicable when anything had been done before the first day of April 1930, in any proceeding pending in Court on that date. The implication, therefore, is that if there was any pending proceeding on 1st April 1930, the retrospective operation of these sections would not be excluded. This decision was followed by a Bench of five Judges in the same High Court in Hira Singh v. Jai Singh : AIR1937All588 . The Patna High Court originally took a different view in Jagdeo Sahu v. Mahabir Prosad (34) 21 A.I.R. 1934 Pat. 127, but this was overruled by the later Full Bench decision in Tika Sao v. Harilall (40) 27 A.I.R. 1940 Pat. 385. The Bombay High Court accepted the view taken by the Allahabad High Court in Totaram v. Ram Lall : AIR1932All489 , vide Subraya Kuppa v. Timmanna Subraya (38) 25 A.I.R. 1938 Bom. 508 and Vishnu Balkrishna v. Shankareppa Gurlingappa (42) 29 A.I.R. 1942 Bom. 227. The same view has been taken in this Court by Sen J. in Padma Lochan Roy v. Sheik Azimaddin (38) 42 C.W.N. 1106. We think that this view is right and should be accepted. A contrary view has indeed been expressed by the Madras High Court in Lakshmiamma v. Sankara Narayana (36) 23 A.I.R. 1936 Mad. 171, but with respect to the learned Judges who decided it, we find it difficult to accept their suggestion that the provision of Section 63 of the amending Act was inserted ex majore cautela only for the purpose of removing a doubt. If it is only to emphasise the fact that all changes in substantive law are retrospective that Section 63 was introduced, there is absolutely no reason why some sections only should be mentioned there and the rest omitted. If again the sections that are omitted are held to be not retrospective, there was no necessity to insert any special provision to save pending actions. In our opinion, Section 92 is retrospective in its operation, and as in the case before us, there was no proceeding pending on 1st April 1930, the provisions of that section could be invoked by the plaintiffs.

5. But even if Section 92 has no application to the facts of this ease, we are of opinion that the plaintiffs are entitled to claim subrogation under Section 74 of the old Act. Though the word 'subrogation' did not occur in the old Act, it is well known that Sections 74 and 75 of the Act were based upon the principle of subrogation. Taken literally Section 74 laid down a rather narrow rule and restricted the rights of subrogation of a puisne mortgagee to redeem a prior mortgage within definite limits. The section was confined to payment by a subsequent mortgagee only to the next prior mortgagee, and as the payer had to obtain a receipt from the payee, it is difficult to say on the language of the section whether it did apply to a case where the payment was made in Court after a decree was passed. But their Lordships of the Judicial Committee gave the section a wider and more liberal interpretation and it was expressly held in Gopi Narayan Khanna v. Bansidhar (05) 27 All. 325, that Section 74 was applicable when a puisne encumbrancer paid the dues of the first mortgagee after the latter had obtained a decree upon his mortgage. On the strength of this decision, we are bound to hold that the plaintiffs would be entitled to claim the rights of subrogation even if Section 74 of the old Act be held to be applicable.

6. The next and the more important question for our consideration is whether the present suit which is a suit to enforce the rights of subrogation is within time. Admittedly, a period of twelve years has long expired from the due date of the first mortgage bond. The first mortgagees had instituted their suit just before the expiry of twelve years, and that was in the year 1914. The present suit has been brought in the year 1930 even more than twelve years after the preliminary decree was obtained. The question raised is, what should be the starting point of limitation in a suit of this character. The point is not free from difficulty, and so far as this Court is concerned, it is not covered by any previous decision. A puisne encumbrancer when he pays off an earlier mortgage is subrogated in law to the rights of the latter. He has the 'same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee' (Section 92, T.P. Act). The principle underlying subrogation is that the mortgage or charge which is redeemed by payment is not extinguished but is kept alive and the benefit of it is transferred to the subrogee. It cannot be said, therefore, that by the payment of the dues on an earlier mortgage a new charge is created and brought into existence by operation of law in favour of the subsequent mortgagee who pays the money.

7. We are not unmindful of the case in Shiblal v. Munnilal (22) 9 A.I.R. 1922 All. 153, which was decided under Section 74 of the old Act. There the Allahabad High Court expressed its opinion that when a second mortgagee discharged a decree obtained by the first mortgagee, he acquired a charge on the mortgage property as from the date upon which he made the payment in satisfaction of the decree. The learned Judges were apparently in error in applying the provision of Section 95 of the old Act which was applicable only when a co-mortgagor discharged the mortgage, to cases coming under Section 74 of the Act which was worded in a quite different manner. This distinction between the provisions of Sections 74 and 95 of the old Act was pointed out by a Pull Bench decision of our Court in Umarali v. Asmatali : AIR1931Cal251 , and it was held further in that case that after the amendment of 1929, a co-mortgagor who redeems a mortgage can no longer claim to have any statutory charge which the old Section 95 provided, and he has the same rights now as any other subrogee under Section 92 of the present Act. The reasoning of the learned Judges in Shiblal v. Munnilal (22) 9 A.I.R. 1922 All. 153, is undoubtedly wrong. Whether the decision could be supported on the ground that as the mortgage money was paid after the decree was obtained by the earlier mortgagee no suit could be brought on the original mortgage is a question which will be discussed in the course of this judgment.

8. When a prior mortgage in respect of which subrogation is claimed by a puisne mortgagee has not been sued upon, the latter, if he wants to enforce his rights by instituting a suit, would have to bring the suit within the period of limitation which was available in law to the prior mortgagee himself. The cause of action of the plaintiff in such a suit is exactly the same as that of the original mortgagee, and consequently limitation will run from the date when the cause of action on the original mortgage arose. This proposition is supported by the decision of the Judicial Committee in Md. Ibrahim Hossain v. Ambika Pershad ('12) 39 Cal. 527, and has been accepted as good law by the different High Courts since then: vide Alam Ali v. Beni Charan : AIR1936All33 , Babulal Bay v. Bindhyachal Rai ('43) 30 A.I.R. 1943 Pat. 305. In the Privy Council case, there were five successive mortgages upon certain properties,--the earliest being under a zeripeshgi deed, dated 20th November 1874, and the latest under a simple mortgage bond, dated 17th February 1888, for a sum of Rs. 12,000. The last mortgage which was in favour of Alfan was for the express purpose of paying off the zeripeshgi debt which the mortgagee discharged. On 22nd September 1900, the representatives of Alfan brought a suit to recover Rs. 12,000 as principal and Rs. 23,150 as interest on a declaration that the properties covered by the mortgage of 17th February 1888, and by the zeripeshgi deed of 20th November 1874 were liable for the entire amount. In other words, the plaintiff claimed priority on the basis of subrogation over the intermediate mortgagees who were made parties to the suit.

9. Now the intermediate mortgagees had already instituted suits upon their respective mortgages and obtained decrees in execution of which the properties comprised in the mortgage bonds were sold. To all these suits, except one, the last mortgagee was a party. It was held by their Lordships of the Judicial Committee that the plaintiff's claim for priority in respect of the zeripeshgi deed was barred by constructive res judicata as against those intermediate mortgagees in whose suits the last mortgagee was made a party. As against the particular mortgagee who failed to implead the plaintiff's predecessor as a party to his suit, the claim of the latter was not barred by res judicata, but it was held to be barred by limitation inasmuch as the suit was instituted more than twelve years after the due date of the zeripeshgi, which was Jyet 1294, Fasli (September 1887). This was a ease in which the prior mortgage was paid off before a decree was obtained on it, and it cannot be disputed that in such cases the period of limitation within which the subrogee must institute his suit is twelve years from the date of payment in the previous mortgage which was redeemed by him.

10. The question now is what would be the position in law if the payment is made after a decree has been obtained by the previous mortgagee, and subrogation is claimed by reason of paying off the mortgage decree. It is not and cannot be disputed that a prior mortgagee can be redeemed even after a decree is passed on his mortgage, till the sale which might take place under the decree has been confirmed or a final decree for foreclosure is passed. The charge of the mortgagee is not extinguished by the decree. It attaches itself to the decree, and it is the decree which enforces the charge after it is passed. It may be that at the date when a mortgage decree has been obtained more than twelve years have already elapsed from the due date in the mortgage bond and the point for determination is what would be the rights of a puisne mortgagee if he now pays off the decretal dues. According to certain earlier decisions, if a puisne mortgagee redeemed a prior mortgage after a decree was passed upon it, he could be allowed to execute the decree in the same way as the prior mortgagee could. This is obviously a straightforward method, but this view has been overruled by the Judicial Committee in the case in Gopi Narain Khanna v. Banshidhar (05) 27 All. 325. There a foreclosure decree on a prior mortgage was paid off by a subsequent mortgagee who was made a party to the suit. By virtue of the rights of subrogation acquired thereby, he wanted to continue the proceedings but his application was dismissed, and thereupon he filed a suit praying inter alia for an absolute decree of foreclosure. It was held by the Judicial Committee that such a suit was maintainable and was not barred by Section 244, Civil P.C., as was held by the High Court. 'Their Lordships think,' so runs the judgment,

that on payment by Gaya Prosad of the sum into Court before the expiry of the enlarged time, and acceptance of that sum by the plaintiffs, the decree was spent and became discharged and satisfied. There was, therefore, nothing left to be done in the execution department. It is true that Gaya Prosad having made that payment acquired under Section 74, T.P. Act, all the rights and powers of the mortgagees as such. But this would not have the effect of reviving or giving vitality to a decree which by the terms of it had become discharged. Even if that were not so, their Lordships fail to see how the respective rights of Gaya Prosad as owner of the first mortgage and half owner of the second mortgage, and the respondent as owner of the other moiety of the second mortgage, could have been worked out without additions to the decree which the Court in executing the decree had no power to make. They are, therefore, of opinion that a new decree was required for the purposes and Section 244, Civil P.C., was not a bar to the present suit.

11. The position, therefore, is that the puisne encumbrancer who satisfies an earlier mortgage decree cannot continue the execution proceedings as a representative of the decree-holder. The reasons are twofold: in the first place, the decree being satisfied is no longer executable. In the second place, the form in which the decree is passed does not entitle the executing Court to work out the rights of the subrogee which might involve determination of questions between the defendants inter se. In the case before the Judicial Committee, the puisne encumbrancer was made a party to the suit and if the decree was in the proper form as suggested by their Lordships, possibly he could have been allowed to seek his remedy in execution proceedings; but this much is settled, that when, as in the case before us, he is not a party to the suit or the decree is not in the proper form as would enable a puisne mortgagee who redeems the decree-holder to have his rights worked out in execution proceedings, a suit is the proper and the only remedy.

12. The question now narrows down to this. What should be the nature of such a suit? Would it be a suit to enforce the original mortgage bond upon which a decree has already been obtained or a suit to enforce the rights which the decree-holder has acquired on the strength of the decree. If the former view is accepted, the suit would have to be brought within twelve years from the date of the mortgage bond itself. If the other view is taken, then further questions would arise as to what would be the period of time within which such a suit has to be brought and what would be the starting point of limitation. The question came for consideration before the Madras High Court in Parvati Ammal v. Venkatarama ('25) 12 A.I.R. 1925 Mad. 80 and it was held by Wallace J., that when the plaintiff paid off a prior mortgage after a decree was passed and before a sale in execution of the decree was confirmed, and subsequently instituted a suit to recover the money advanced, by sale of the mortgaged properties, the plaintiff must be taken to be subrogated not merely to the prior mortgage in its original form as a mortgage charge but to the decree charge held by the prior mortgagee, that is, the right to hold the property to sale to discharge the decree debt. This right was free of any restriction, that it should be worked out within the period of limitation for the enforcement of the original mortgage. It was further held that as the prior mortgage decree had been satisfied and was, therefore, not executable, the plaintiff was entitled to enforce his lien by way of a suit. For the last proposition Wallace J., expressly relied upon the pronouncement of the Judicial Committee in Gopi Narain Khanna v. Banshidhar (05) 27 All. 325. It appears, however, that the learned Judge modified his view to a considerable extent in the subsequent decision in Kotappa v. Raghavayya : AIR1927Mad631 , where he agreed with Madhavan Nair J., in holding that a puisne mortgagee paying off a decree on a prior hypothecation was not entitled to enforce the decretal charge by a suit, but could only enforce the original mortgage charge which the prior mortgagee had and that within the period of limitation allowed to the latter, under law. But the learned Judges relied for their view upon the decision of the Judicial Committee in Gopi Narain Khanna v. Banshidhar (05) 27 All. 325, though it was not strictly relevant to the point as it did not deal with the question of limitation at all. What weighed very much with the learned Judges is that in the Privy Council case, the plaintiff who paid off the dues on the prior mortgage filed a fresh suit for foreclosure, apparently on the basis of the earlier mortgage, and the Privy Council sustained that action.

13. The identical question was considered by a Pull Bench of the Allahabad High Court in Alam Ali v. Beni Charan : AIR1936All33 , and it was held by Sulaiman C.J., and Bennet J. (Ganga Nath J., dissenting) that when a subsequent mortgagee redeemed a decree obtained on an earlier mortgage, the payment gave him all the rights and powers of the mortgagee decree-holder as were then subsisting. In other words, he was entitled to priority over subsequent encumbrances and could recover his amount by sale of the property without any bar of limitation of twelve years from the time when the mortgage money was due. The subrogee would to all intents and purposes stand in the shoes of the mortgagee decree-holder though the procedure to be followed by him to enforce his rights would be different. He would have to institute a suit as he is incapable of executing the decree as assignee of the decree-holder. Such a suit, according to the learned Judges, would be governed by Article 132, Limitation Act, and limitation would run from the date when the decretal amount was paid and the statutory right acquired. Ganga Nath J., delivered a dissenting judgment, and expressed the opinion that the subrogee's rights were the same, whether the mortgage he redeemed had already merged in a decree or not. The right of subrogation is based only upon the right of the prior mortgagee to enforce his security, and the subrogee has to act within the same period as is allowed under law to the mortgagee. The view taken by the majority of the Judges in this Full Bench case was accepted in its entirety by a Division Bench of the Patna High Court in Kamalapati Devi v. Jageshwar Dayal ('39) 26 A.I.R. 1939 Pat. 375. The same view was reiterated with slight modification in the subsequent case of the Patna High Court in Babulal Bay v. Bindhyachal Rai ('43) 30 A.I.R. 1943 Pat. 305, and the judgment was delivered by Chatterji J., who was a party to the earlier decision in Kamalapati Devi v. Jageshwar Dayal ('39) 26 A.I.R. 1939 Pat. 375. In the earlier case it was held following the Full Bench decision of the Allahabad High Court that a suit of this description would be governed by Article 132, Limitation Act, and time would commence to run from the date that the decretal dues were paid.

14. In Babulal Bay v. Bindhyachal Rai ('43) 30 A.I.R. 1943 Pat. 305, no definite opinion was expressed regarding the article of the Limitation Act which would apply to such cases. Chatterji J. observes in his judgment that if Article 182 applied, limitation would run not from the date when the prior mortgage decree was paid but from the date fixed in that decree for payment of the mortgage money, whereas if Article 120 applied, the date of payment of the decretal amount would be the starting point. There is no decision of this Court bearing on this point. Now, the essence of subrogation undoubtedly is that the party paying off a charge becomes entitled to all the rights of the charge-holder. It is sometimes spoken of as equitable assignment which means not that there is an assignment in fact, but on principles of natural justice, the subrogee is given the same position as if he was an assignee of the charge. We think that it is perfectly logical to say that if at the time when the prior mortgage is redeemed, the mortgagee had already obtained a decree, and though the time for bringing a suit on the mortgage bond itself had long expired, the decree-holder was still capable of realising his decretal dues by sale of the mortgage property in preference to any subsequent mortgagee, there is no reason why the same rights should not vest in the puisne mortgagee who redeems the mortgage and is entitled to subrogation under Section 92, T.P. Act. The subrogee could not be placed in a worse or different position than the charge-holder himself occupied. Once a decree has been obtained, the mortgagee can no longer sue upon the original mortgage. On the other hand, the decree itself gives him a right by which he can satisfy the charge from the property itself. In such circumstances if the puisne mortgagee who pays off the mortgage decree is compelled to institute a suit on the original mortgage bond which the mortgagee himself could not do, that would be, to quote the language of Wallace J. in Parvati Ammal v. Venkatarama ('25) 12 A.I.R. 1925 Mad. 80, 'to set back the hands of the clock of evolution' and 'to relegate the puisne mortgagee to an unenforceable charge and deny him an enforceable one.' The result of such a course would be that in reality there would be no subrogation where the money is paid after the prior mortgagee obtains a decree upon his mortgage.

15. The whole trouble is created by the fact that there are technical difficulties in the way of allowing a puisne mortgagee who pays off the dues under a previous mortgage decree, to realise his money by execution of the decree itself. If he is not a party to the decree, he cannot execute it at all as the decree is ex hypothesi satisfied by payment, and a satisfied decree cannot be executed by an assignee of the decree. If he is a party to the suit, even then the decree has to be in the proper form which would enable the executing Court to give relief in execution proceedings. It is certainly advisable for the puisne mortgagee, if he is a party to the suit, to insist on the decree being drawn up in the proper form, as was suggested by their Lordships of the Judicial Committee. If, however, this is not done or is not possible, we fail to see any cogent reason why he could not be allowed to enforce by a suit the same rights which he could assert in execution proceedings. The procedure might be different, but the rights, in substance, would remain the same. We would respectfully agree with the view expressed by Wallace J. in Parvati Ammal v. Venkatarama ('25) 12 A.I.R. 1925 Mad. 80, and we fail to see why the learned Judge altered his view in the subsequent decision. The decision in Gopi Narain Khanna v. Banshidhar (05) 27 All. 325, was before the learned Judge when he decided the earlier case, and he expressly referred to it in his judgment. There was nothing in this case which had any direct bearing on the present point. No question of limitation arose in that case as the second suit for foreclosure was instituted within 12 years from the date of the original mortgage bond. It is true that the suit instituted by the plaintiff was one for foreclosure, but it would be a suit for foreclosure even if it was based on the decree and not on the' mortgage. On the other hand, the judgment shows that the appellant was held entitled to a moiety share of Rs. 15,093 which was paid into Court by Gaya Prosad on 3rd January 1896, and not the amount which would have been due on the mortgage. No interest at the contract rate was allowed as it had to be allowed if the old mortgage was still regarded as subsisting, and only by way of compensation, six per cent, interest was allowed on a moiety share of the original principal money advanced. The form in which the suit was instituted by the plaintiff cannot be taken to show that in the opinion of their Lordships, the suit must be upon the basis of the original mortgage. Reading the judgment as a whole, it seems to us quite proper to conclude that the suit by a puisne mortgagee who had satisfied a decree on an earlier mortgage should be to enforce the rights under the decree and not the original mortgage, and a suit is necessary because the form of the decree does not allow the puisne mortgagee to obtain relief in execution proceedings.

16. We hold, therefore, that a puisne encumbrancer who satisfies a decree obtained by a prior mortgagee is in law relegated to the position of the decree-holder, and though he cannot execute the decree unless his rights are properly declared in the decree itself, he can institute a suit to enforce his rights under the decree, and if the decree paid off by him was one for sale, he can in the suit brought by him pray for sale of the property to which the decree relates, for the discharge of the decretal debt. As the decree is a mortgage decree, the suit should be regarded as one to enforce the payment of money charged on immovable property, and in our opinion, Article 132, Limitation Act, is the proper article to be applied in such eases. We cannot agree with the view taken in Alam Ali v. Beni Charan : AIR1936All33 that the starting point of limitation in such suits is the date of payment of the decretal dues by the puisne mortgagee. Sulaiman C.J. spoke of a statutory right accruing on the date of payment. We think that as the right which accrues on payment is the right to enforce the charge that had already merged in the decree, it should be enforced within 12 years from the date of payment mentioned in the decree itself. To this extent, we agree with the opinion, though tentatively expressed by Chatterji J. in Babulal Bay v. Bindhyachal Rai ('43) 30 A.I.R. 1943 Pat. 305.

17. In the case before us, the plaintiffs, in our opinion, would be entitled to a decree for sale of the properties comprised in the mortgage decree if they succeed in showing that the present suit is within 12 years from the date of payment specified in the preliminary decree. The preliminary decree in this case was passed on 20th January 1915. If the date of payment was six months after that date, the present suit as a suit to enforce a charge is clearly barred by limitation. Mr. Mukherji appearing on behalf of the appellants contends before us that the date of payment might have been extended by subsequent orders. We do not think it probable that it was extended by another three years, but as we have no materials before us upon which we can come to any definite conclusion on the point, we are constrained to send the matter back in order that this fact may be ascertained on proper materials. The case will, therefore, go back to the trial Court with a direction that it would on going through the records of the mortgage suit, or failing that, such other evidence as the parties might choose to adduce, come to a finding as to whether the date of payment of the mortgage money in the decree was beyond 12 years from the date of the institution of the present suit. If more than 12 years have already elapsed from that date, the present appeal will stand dismissed and the judgment of Jack J. will stand. If the suit is within 12 years from the date, the plaintiffs would get a decree for the realisation of the sum claimed by them by sale of the properties specified in the plaint. Liberty should be given to the mortgagors or the representatives to pay off the amount within a certain time. The appeal is disposed of in the manner indicated above. There will be no order as to costs in this appeal.

Sharpe, J

18. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //