1. (Prinsep, Wilson, Tottenham, and Norris, JJ., concurring): The question referred to the Full Bench is substantially this: Whether the present suit falls under Article 132 or Article 147 of the present Limitation Act. Article 132 provides that, for a suit to enforce payment of money charged upon immoveable property, the period of limitation should be 12 years from the time when the money sued for became due. Article 147 says that, for a suit by a mortgagee for foreclosure or sale, the period of limitation shall be 60 years from the time when the money secured by the mortgage became due. The plaintiff in this suit seeks to recover money secured by simple mortgage of certain immoveable property by the sale thereof. The mortgage was created by a bond, by which the debtor also personally covenanted to repay the money but within a stipulated time. It would be useful to see what were the periods of limitation prescribed for a snit of this description in the two previous Limitation Acts. It is not disputed that under both these Acts the period of limitation was 12 years--see Jonessur Das v. Mohatir Singh 3 I.A. 1 : 1 C. 163 ; Ramdin v. Kalka Prasad 7 A. 502 : 12 I.A. 12. In the Limitation Act of 1871 there was no article corresponding to Article 147 of the present Act; and the Article 132 of that Act with slight modification has been re-enacted in Article 132 of the present Act. Instead of the words 'to enforce payment of money charged upon immoveable property' it contained the words 'for money charged upon immoveable property.' The addition of the words 'to enforce payment of money' indicates that the article would not apply to a suit for money charged upon immoveable property when the payment of the money is not sought to be enforced upon the property hypothecated. The modification therefore does not at all affect the question before us. The class of suits now under consideration was therefore described in the Act of 1871 as a suit for money charged upon immoveable property. The contention of the (plaintiff) appellant before us is that, although in Article 132 of the present Act the same expression, viz., 'money charged upon immoveable property,' has been used, yet the Legislature intended to exclude this class of suits from it, and to include it under Article 147, which has been for the first time introduced into the Act. This contention is, in my opinion, not sound. It seems to me to be an unreasonable contention that, although the Legislature intended to exclude from Article 132 of the present Act this class of suits, yet, in describing the nature of the suits covered by it, they did not make any, material alteration in the language which they had used for that purpose in Article 132 of the Limitation Act of 1871. If the Legislature intended to alter the law, they would have expressed their intention by altering the language of Article 132, and not by simply introducing a new article which again would not include the class of suits under consideration unless the word 'or' in the expression 'by a mortgagee for foreclosure or sale' be read in the distributive sense. The contention of the appellant therefore amounts to this. The Legislature intended to modify the provisions of the law laid down in Article 132 of the Act of 1871. They have carried out their intention, not by making any change in the corresponding article of the present Act, but by introducing into it a new article couched in language which, unless the word 'or' be read in the distributive sense, would not indicate the change at all. It is hardly necessary to say that such a contention as this cannot be accented as sound unless supported by the most convincing reasons. The contention also involves another equally unreasonable conclusion. Under the Acts of 1859 and 1871 the law of limitation governing suits by mortgagees under kutkobala or bill of conditional-sale was as follows: Where a kut-kobala gave to the mortgagee the right to recover possession on default of payment the period of limitation for a suit based upon this stipulation was 12 years--see Brojonath Koondoo Chowdhry v. Khelut Chunder Ghose 14 M.I.A. 144 : 8 B.L.R. 104 ; Article 135 of the Act of 1871. In Courts not established by Royal Charter in the Presidency of Bengal the period of limitation for a suit for possession of the mortgaged property, upon the conditional-sale becoming absolute under the provisions of Regulation XVII of 1806, was 12 years from the data when the sale became absolute--Chinaram Dobey v. Ram Monaruth Dobey 7 C.L.R. 580 Modun Mohun Chowdhry v. Ashad Ally Beparee 10 C. 68. But in cases where the right of the mortgagee has been extinguished by the law of limitation the proceedings under Regulation XVII of 1806 did not give a fresh start--see Modun Mohun Chowdhry v. Ashad Ally Beparee 10 C. 68. Now in the year 1877, when the present Act was passed, foreclosure suits were not known in the Courts not established by Royal Charter in the Bengal Presidency In the year 1877 therefore suits under kut-kobalas or conditional bills-of-sale for possession of mortgaged property were not covered by Article 147. The period of limitation for such suits, which was 12 years under the Act of 1871, was consequently not altered under the new Act. The contention of the appellant therefore involves this unreasonable conclusion, that the Legislature kept up the shorter period of limitation, viz., 12 years for kut-kobalas, a higher class of mortgage, and extended the period of limitation from 12 to 60 years for an inferior kind of mortgage, namely hypothecation of immoveable property in a bond. But, as already stated, if the word 'or' be not read distributively, these unreasonable conclusions are avoided. The article would then include only that class of suits in which the mortgagee would be entitled to either of the remedies, viz., foreclosure or sale in the alternative, i.e., suits based upon what is usually called an 'English mortgage.' I have carefully considered the reasons given in support of the appellant's contention in the decisions cited before us, and with deference to the opinion of the learned Judges who decided them I am unable to concur in their conclusion.
2. The most imporbant case in support of this contention is a Full Bench decision of the Allahabad High Court, Shib Lal v. Ganga Prasad 6 A. 551. The first ground upon which this decision proceeds is that, as under Article 147 the Legislature has allowed 60 years to a mortgagor to redeem a simple mortgage, it would be reasonable to suppose that they have allowed the same period to the mortgagee to bring a suit for sale. It seems to me that in the year 1877, when the new Act was passed, a suit for redemption by a mortgagor under a simple mortgage was wholly unnecessary, and there-tore unknown. It cannot, therefore, be said that under Article 147 the period of limitation of 60 years was allowed to a suit for redemption by a mortgagor under a simple mortgage who did not stand in need of such remedy at all. Suits for redemption were necessary only when the possession of the mortgaged premises was to be recovered from the mortgagee, or when it was necessary to obtain a reconveyance of the mortgaged property, it having been previously conveyed to the mortgagee. Moreover, under the Acts of 1859 and 1871, the policy of the Legislature was to give to the mortgagor a period of limitation for redemption longer than that allowed to the mortgagee for enforcing his remedy. There is no valid reason suggested to show that there was any necessity for a departure from this policy.
3. The second reason assigned in the judgment is expressed as follows : 'When Article 147 of the Limitation Act speaks of a suit by a mortgagee for sale, why should we go out of our way to hold that it does not cover a case in which the plaintiff in his relation towards the defendant legaliy and to all intents and purposes stands in the position of a mortgagee.' I have already stated the grounds upon which it seems to me that the present, suit does not fall under this Article. They are substantially two, viz., (a) there is no material alteration in the language of Article 132 ; (b) certain unreasonable consequences follow if we bring this class of cases within Article 147.
4. The third reason upon which the judgment of the Allahabad Court proceeds is that, as the Bill, which subsequently became the 'Transfer of Property Act,' was pending before the Legislature in the year in which the present Limitation Act was passed, it would be reasonable to infer that the Legislature used the word 'charge' in Article 132 in the same sense in which it is used in the 'Transfer of Property Act.' The learned Officiating Chief Justice who delivered the main judgment was further of opinion that probably the distinction which has been drawn in the 'Transfer of Property Act' between a 'charge' and a 'mortgage' is nothing more than a crystallization of the principle enunciated in the many decisions of the Courts delivered upon the subject. It seems to me to be more probable that the Legislature in arcs. 132 and 147 used these expressions in the sense in which they were then ordinarily used than in the sense in which they were used in a Bill which was then pending before them, and which Bill might or might not become law thereafter. The distinction between 'mortgage' and 'charge' was for the first time drawn by a clear line of demarcation in the 'Transfer of Property Act.' For example, speaking of the class of mortgage now under our consideration, Sir Barnes Peacock, C.J., in delivering his judgment in the Full Bench decision in Surwar Hossein Khan v. Gholam Mahomed (sic), characterised it as a 'charge' upon immovable property. In Ramdin v. Kalka Prasad 7 A. 502 : 12 I.A. 12, their Lordships of the Judicial Committee assumed that the word 'charge' included a simple mortgage. There are several cases under Article 132 of the Limitation Act, 1871, in which a simple mortgage has been described as a charge upon immoveable property. I am of opinion that, instead of referring to a Bill as to which it was uncertain whether it would be passed into law or not, it would be quite legitimate to refer to the forms of plaint given in the Procedure Code of 1877, which was passed in the same Session of the Legislature. No. 109 of the fourth schedule of the Code is a form (sic) plaint in a suit for foreclosure or sale, and it would appear from the (sic) of that form that it would apply only to a suit brought upon what (sic) English mortgage. Mr. Justice Oldfield referred to this form in his judgment, but it seems to me that the form in question does not apply to a suit to be brought by a simple mortgagee for the sale of the mortgaged premises.
5. The last ground upon which the Allahabad Full Bench decision is based is that, as in the year 1877 suits by mortgagees for foreclosure or for sale were unknown to the Courts, it would not be unreasonable to refer to Sections 87 and 88 of the Transfer of Property Act for their explanation. But a suit for foreclosure or sale was not altogether unknown in 1877. A suit of this description was not uncommon in Courts in this country which administered the English law of mortgage, that is, the Courts exercising the original jurisdiction in the Presidency towns. It was a defect in the Limitation Act of 1871 that there was no Article in express language applicable to a suit of this description. Consequently in a case of Ganpat Pandurang v. Adarji Dadabhai 3 B. 312, it was contended that the period of limitation applicable to a suit of this description was six years under the sweeping clause of the Limitation Act. It seems to me that in order to remedy this defect the Article 147 was for the first time introduced into the present Limitation Act. The other cases cited by the learned pleader for the appellant merely follow the Allahabad Full Bench decision. I am of opinion that the present suit is governed by Article 132 of the present Limitation Act, and is consequently barred. The result will be that the appeal will be dismissed with costs.