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Kamala Kant Sen Vs. Abul Barkat Alias Habibulla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal180
AppellantKamala Kant Sen
RespondentAbul Barkat Alias Habibulla and ors.
Cases ReferredMiller v. Runga Nath Moulick
Excerpt:
limitation act (xv of 1877), schedule ii, article 132 - sale for arrears of revenue--lien of mortgagee on balance of sale-proceeds--limitation act, schedule ii, articles 62, 97, 120--transfer of property act (iv of 1882), section 73--mortgage suit--charge on proceeds of revenue sale--revenue-paying estate--act xi of 1859, section 53. - .....defendant was one of the defaulting owners who obtained the property either by purchase at the revenue sale or by purchase from the purchaser at that sale, and as such under, section 53 of act xi of 1859 he obtained the property subject to all existing incumbrances. in march 1891 the entire estate was again sold for arrears of government revenue and was purchased by a third party. the second defendant took out the surplus sale proceeds, amounting, it is said, to rs. 4,353, and on the 5th august 1895 the plaintiff brought this suit to recover from the defendants the amount due on his mortgage, praying, it maybe somewhat vaguely that the court would direct it to be paid out of the consideration money of the property, meaning apparently the surplus sale proceeds appropriated by the.....
Judgment:

Macpherson and Ghose, JJ.

1. The facts of this case appear to be these: In April 1885 the first defendant borrowed a sum of money from the plaintiff, which was to be paid within a year, and as security for the re-payment of it he mortgaged by way of conditional sale his share in a revenue-paying estate. The first defendant's interest in that estate was then sold in execution of a money decree which was obtained against him and was purchased by the second defendant. In 1886 the estate was sold for arrears of Government revenue and was purchased by the third defendant, who again sold it to the second defendant. It does not much matter whether the third defendant was or was not, as the first Court found, a benamidar for the second defendant. The second defendant was one of the defaulting owners who obtained the property either by purchase at the revenue sale or by purchase from the purchaser at that sale, and as such under, Section 53 of Act XI of 1859 he obtained the property subject to all existing incumbrances. In March 1891 the entire estate was again sold for arrears of Government revenue and was purchased by a third party. The second defendant took out the surplus sale proceeds, amounting, it is said, to Rs. 4,353, and on the 5th August 1895 the plaintiff brought this suit to recover from the defendants the amount due on his mortgage, praying, it maybe somewhat vaguely that the Court would direct it to be paid out of the consideration money of the property, meaning apparently the surplus sale proceeds appropriated by the second defendant. The second defendant who alone contested the suit raised a plea of limitation. This was overruled by the Subordinate Judge, but was accepted by the District Judge, who without going into any of the other questions raised dismissed the suit as barred by limitation, holding that either Article 97 or Article 62 of the Limitation Act applied.

2. In our opinion the decision of the Subordinate Judge is right and that of the District Judge wrong. This was not a suit to enforce as against the mortgagor the remedy which the plaintiff had on a personal covenant to pay. It was a suit to enforce a lien upon the property; but that property is beyond the reach of the mortgagee owing to its sale for arrears of Government revenue, and the lien has been transferred from the property itself to the balance of the money which remained after satisfying the Government demand. The plaintiff's cause of action is the non-payment of the money which was a charge upon the property; and the circumstance that owing to the defendants default to pay the Government revenue the property has been sold, does not, it seems to us, in any way affect the cause of action which the plaintiff had, or limit the time within which he would be entitled to bring the suit if the property is still available.

3. We have been referred to the observations of their Lordships of the Judicial Committee in the case of Ram Din v. Kalka Prasad (1884) I.L.R., 7 All., 502: L.E., 12 I.A., 12, in which it is said that Article 132 should be read as having reference only to suits for money charged upon immoveable property to raise it out of that property. In the case of Miller v. Runga Nath Moulick (1885) I.L.R., 12 Cal., 389, Mitter and Norris, JJ., put the same construction upon that article, saying that it referred only to suits to enforce payment of money charged on immoveable property by the sale of that property. The questions raised in both those cases were very different from the questions raised in this case. There the plaintiff sought to extend the period allowed by Article 132 of the Limitation Act to a claim upon the personal covenant of the mortgagor to pay, in other words, he contended that article applied either to a claim to recover on the personal covenant or to recover the money as a charge upon the property. What was decided was that Article 132 would not cover the case of a plaintiff suing on the personal covenant, but that it only applied to suits brought to enforce the payment of the money. There is nothing in the cases to which we have referred inconsistent with the view we have now expressed if to the words 'to raise the money out of the property' be added 'or what is now a substitute for the property.' Under Section 73 of the Transfer of Property Act, the lien which existed on the property charged is now transferred to the purchase money; and we do not see anything in the Limitation Act which would shorten the time within which the plaintiff could sue to recover the money, the suit being a suit, not on the personal covenant, but a suit to recover the money as charged on the mortgaged property. We may also add that if it is to be considered that the plaintiff's original cause of action to enforce a charge on the property ceased when the property was sold for arrears of, revenue, and that a new cause of action accrued to him then so as to entitle him to bring a suit for the recovery of the money which the mortgagor or his representatives had taken, then we think Article 120 would apply, and in that view the suit would be in time.

4. The decree of the District Judge must, therefore, be set aside, and the case must go back in order that the Lower Appellate Court may determine all other questions which are raised in the appeal before it. All that we decide is that the plaintiff's claim to recover the mortgage money out of the sale proceeds is not barred by Article 132. What does or what does not form a part of the mortgage money, or what sum the plaintiff is entitled to recover as such, are questions which the Court disposing of the appeal will have to decide.

5. The appellant is entitled to his costs in this appeal.


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