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Ashad Ally Beparee and ors. Vs. Modum Mohun Chowdhry and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal68
AppellantAshad Ally Beparee and ors.
RespondentModum Mohun Chowdhry and anr.
Cases Referred and Lall Mohun Gungopadhya v. Prosunno Chunder Banerjee
Excerpt:
limitation ad (ix of 1871), schedule ii, articles 135 and 145 - act xv of 1877, schedule ii, article 135--possession under mortgage. - .....he took proceedings for foreclosure; and the year of grace expired within twelve years from the time of default.20. within twelve years after the expiration of the year of grace he brought his suit for possession, not as mortgagee, but as absolute owner of the property; and it was held that he was entitled to recover.21. the case was governed by the limitation act of 1871; and as explained by mr. justice pontifex, the plaintiff, if he had sued as mortgagee, had twelve years (under article 35)* from the time when, as mortgagee, his right to possession accrued.22. before this period had expired, he had, by the foreclosure proceedings, clothed himself with a new character, that of absolute owner, and article 145 q.v. supra x cal. 68 gave him twelve years form the time when his title.....
Judgment:

Richard Garth, C.J.

1. The plaintiffs in this case sue for possession of certain immoveable property. They claim under a deed executed by the defendant on the 13th Falgoon 1261 (28th February 1855), which is called in the plaint a kutkabala, but which, upon the face of it, appears to be an absolute sale to the plaintiffs, for the sum of Rs. 275.

2. It seems, however, that there was a verbal arrangement between the parties that the transaction should really be a mortgage, and that the money advanced should be paid off with interest at the rate of one per cent, per mensem in Bysakh 1262 (April 1855); the acts and conduct of the parties appear to have been entirely in favour of that view, and both the lower Courts concur in finding that the transaction was a mortgage and not a sale.

3. That being so, the question comes to be one of limitation, and it arises in this way.

4. It appears that in the year 1263 (1856), the plaintiffs took the usual proceedings to foreclose the mortgage, and after the year of grace had expired, they brought a suit to recover possession, but they were then defeated on account of some irregularity in the foreclosure proceedings.

5. They then, on the 27th Pous 1285 (13th January 1879), took fresh foreclosure proceedings, and at the expiration of the year of grace from that date they have again brought this suit for possession.

6. The first Court held that the plaintiffs were barred by limitation, upon the ground that limitation began to run against them from Bysakh 1273 (April 1866), when the first foreclosure proceedings came to an end.

7. The Subordinate Judge has reversed that decree, and has given the plaintiffs a decree for possession.*

9. On appeal to this Court it has been contended that, assuming the transaction to have been a mortgage (about which there is no question), the plaintiffs' right to possession accrued at the time when default was made in payment of the mortgage money, that is to say, in Bysakh 1263 (April 1856), and that if it accrued then, the plaintiffs' right of action was barred in 1275 (1868), and that no subsequent foreclosure proceeding could revive their right.

10. In support of that contention, we were referred to the case of Denonath Gangooly v. Nursing Proshad Doss 14 B.L.R. 87 : 22 W.R. 90 decided by Justices Markby and Mitter.

11. In that case the mortgage was by conditional sale, and there was a stipulation in the deed, that if default should be made in payment of the mortgage money, the mortgagee should be at once entitled to possession without any foreclosure proceedings.

12. The mortgagor failed to pay on the day named, and foreclosure proceedings were taken more than twelve years after default. Then, after the expiration of the year of grace, a suit was brought by the mortgagee for possession, and it was held by this Court that the plaintiff was barred, because he ought to have brought his suit for possession within twelve years from the time when his right to possession accrued.

13. Mr. Justice Mitter explains the ground upon which that case was decided in this way. He says, 'from the terms of the conditional sale set forth above, it is evident that, on default of payment within the stipulated time, the mortgagee was entitled to take possession of the properties sold, unless restrained by any legislative enactment. It is said that he was so restrained by Regulation XVII of 1806. This argument entirely proceeds from a misapprehension of the provisions of that law. It is quite clear that parties are ordinarily bound by the terms of their contract, unless by legislative interference one or both of them are set at liberty to modify or annul any of its provisions to which they have mutually consented. The kutkabala in question expressly reserved to the mortgagee the right of entry upon the mortgaged premises on default of payment within the stipulated time. Regulation XVII of 1806, or any other law, does not render such a stipulation inoperative between the parties. I am, therefore, of opinion that the mortgagee in this case, immediately on default of payment which occurred on the 9th of July 1855, was entitled to take possession of the properties mortgaged.'

14. And Mr. Justice Mitter further goes on to say that, although the mortgagee took proceedings for foreclosure and so became entitled to the property as absolute owner, those proceedings gave him no fresh right to sue for possession.

15. That case was followed by another to the same effect Lall Mohun Gungopadhya v. Prosunno Ghunder Banerjee 24 W.R. 433 decided by Mr. Justice Jackson and Mr. Justice McDonell, and both decisions were reviewed in a case which occurred in this Bench Noonoo Opadhya v. Lalla Gouree Churn 1 Shome 21 in which we agreed with the law laid down by Mr. Justice Mitter.

16. It will be observed that, in order to make these decisions applicable in any case, the mortgagee must, by the express terms of the mortgage, have a right to take possession upon default by the mortgagor in payment of the mortgage money, and unless there is that express provision in the deed, it has been held over and over again that the right of the mortgagee to make possession does not accrue until after the expiration of the year of grace.

17. It has been contended that the Subordinate Judge did not understand those oases; and from the fact of his saying that they have been dissented from by Mr. Justice Pontifex and other Judges in two cases Ghinaram Dobey v. Ram Monaruth Ram Dobey 7 C.L.R. 580; and Bromhomoyi Dasi v. Jugobundhu Ghose 7 C.L.R. 583 we think it very possible that he did not comprehend their true meaning.

18. The first of these cases Ghinaram Dobey v. Ram Monaruth Ram Dobey 7 C.L.R. 580 was decided by Justices Pontifex and McDonell; and it will be found not to conflict in any way with the authorities to which I have referred.

19. In that case no doubt the mortgagee had a right, by the terms of the deed, to take possession upon default of payment by the mortgagor. He did not take possession upon default, but he took proceedings for foreclosure; and the year of grace expired within twelve years from the time of default.

20. Within twelve years after the expiration of the year of grace he brought his suit for possession, not as mortgagee, but as absolute owner of the property; and it was held that he was entitled to recover.

21. The case was governed by the Limitation Act of 1871; and as explained by Mr. Justice Pontifex, the plaintiff, if he had sued as mortgagee, had twelve years (under Article 35)* from the time when, as mortgagee, his right to possession accrued.

22. Before this period had expired, he had, by the foreclosure proceedings, clothed himself with a new character, that of absolute owner, and Article 145 q.v. supra X Cal. 68 gave him twelve years form the time when his title accrued to sue in that character.

23. The other case Bromhomoyi Dasi v. Jugbundhu Ghose 7 C.L.R. 583 which was heard by Justices McDonell and Broughton--was decided upon precisely the same principle, so that neither of these cases conflict in any way, as the Subordinate Judge seems to think they do, with the authorities to which we have referred.

24. But whether he quite understood the distinction between the cases or not he appears to be quite right in his conclusions.

25. It is clear that limitation did not run, as the Munsif says it did, from Bysakh 1273 (April 1866), because the first foreclosure proceedings were void for irregularity; nor could the cases of Dinonath Gangooly v. Nursing Proshad Doss 14 B.L.R. 87 : 22 W.R. 90 and Lall Mohun Gungopadhya v. Prosunno Chunder Banerjee 24 W.R. 433 apply here, because there was no stipulation in this case that the mortgagee should be entitled to possession on default of payment by the mortgaor.

26. The only time, therefore, from which limitation could run was the expiration of the year of grace, after the foreclosure proceedings in 1879.

27. The appeal must, therefore, be dismissed with costs.

------------------------------------Foot Note--------------------------------------

* Deciding that the case was governed by Article 135 of Schedule II of Act XV of 1877, but that under the Act-of 1871 the suit was not barred.

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*[Article 35:

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Description of suit. Period of limitation. Time when period begins

to run.

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Fore specific recovery of moveable Two years.... When the property is de-

property in cases not provided for by manded and refused.]

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