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Nidhiram Bandopadhya Vs. Sarbessur Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.877
AppellantNidhiram Bandopadhya
RespondentSarbessur Biswas and ors.
Excerpt:
mortgage - purchase by first mortgagee in execution of own decree to which second mortgagee teas no party--subsequent suit and purchase by second mortgagee--redemption suit by second mortgagee--limitation act (xv of 1877), schedule ii, articles 132, 134, 148. - .....properties including the above-mentioned property which were brought to sale and purchased by the prior mortgagee, the defendant no. 2, in execution of his mortgage-bond, dated the 3rd may 1884.2. the suit on the first mortgage was brought on the 28th march 1892 and the sale in execution at which the decree-holder, defendant no. 2, was the purchaser was held on the 21st march 1893. the properties were, sold by the defendant no. 2 to the defendant no. 1 on the 14th july 1893.3. the suit instituted by the plaintiff's vendor dwarka nath on his mortgage was not instituted till the 6th november 1894, that is to say, till after the proceedings in the suit on the prior mortgage had been brought to an end. the purchase by dwarka nath at the sale in execution of his decree was made on the 20th.....
Judgment:

1. In this appeal, the only point argued on behalf of the appellant is one purely of law. The facts are not disputed. The plaintiffs are the purchasers of a property which was sold and purchased in execution of a mortgage-decree by one Dwarka Nath in satisfaction of a mortgage-bond, dated the 22nd September 1889. The defendant No. 1 in the purchaser of properties including the above-mentioned property which were brought to sale and purchased by the prior mortgagee, the defendant No. 2, in execution of his mortgage-bond, dated the 3rd May 1884.

2. The suit on the first mortgage was brought on the 28th March 1892 and the sale in execution at which the decree-holder, defendant No. 2, was the purchaser was held on the 21st March 1893. The properties were, sold by the defendant No. 2 to the defendant No. 1 on the 14th July 1893.

3. The suit instituted by the plaintiff's vendor Dwarka Nath on his mortgage was not instituted till the 6th November 1894, that is to say, till after the proceedings in the suit on the prior mortgage had been brought to an end. The purchase by Dwarka Nath at the sale in execution of his decree was made on the 20th July 1895 and the plaintiff purchased on the 19th May 1905.

4. Dwarka Nath, the vendor of the plaintiffs, who was the second mortgagee, was not a party to the suit brought by the prior mortgagee and, in the suit brought by the plaintiffs, the only relief claimed for the, purpose of this appeal was that they should be given a decree declaring their right to redeem the first mortgage. The due date for payment of the mortgage-debt due to Dwarka Nath on his bond was the 12th April 1890. This suit was instituted on the 13th July 1905.

5. The plaintiff's case was that they were entitled to count limitation for the purpose of this suit from the 20th July 1895, the date of Dwarka Nath's purchase which is within 12 years of the date of the institution of the suit, the reason given by them being that, from that date, Dwarka Nath acquired the mortgagor's right to redeem the prior mortgage.

6. The defendant's case on this point was that, at the sale Dwarka Nath purchased his own mortgage interest only, as, at the prior sale in satisfaction of the prior mortgage-debt, the equity of redemption of the mortgagor had been sold and purchased by Gopeshwar, the defendant No. 2, and after wards transferred to the defendant No. 1. The plaintiffs, by their purchase, acquired only the right, which their vendor Dwarka Nath had under his second mortgage, and his right, so far as the redemption of the first mortgage was concerned, was to enforce his mortgage by redeeming it within 12 years of the due date of his mortgage debt.

7. The Court of first instance accepted the defendant's case as correct and dismissed the suit holding that Article 132 of Schedule II of Limitation Act applied and that the plaintiff's claim for redemption was barred.

8. The lower appellate Court has held that Article 131 applies, that the plaintiff's cause of action arose from the date of Dwarka Nath's purchase, that is to say, from the 20th July 1895, and that, as the suit was instituted within 12 years from that date, it was within time. It has set aside the judgment and decree of the Court of first instance and has remanded the suit for re-trial. Against that order, this appeal has been preferred by the defendant No. 1.

9. We are of opinion that the decision of the first appellate Court is not in accordance with law and that, that order must be set aside. We may say at once that the rulings of this Court to which the lower Appellate Court has referred have no bearing whatever on the question of limitation raised in this case, and that the facts of those cases differ materially from those of the present case.

10. The question before us is whether, when a property has been sold in execution of a decree obtained on a prior mortgage to which suit the second mortgagee was no party, the time within which the second mortgagee who has purchased the property in execution of a decree in a suit subsequently brought by him to enforce his mortgage, or as in this case, his transferee, has to bring a suit, commences to run from the due date of the mortgage-debt or from the date of his purchase.

11. There appears to be no direct authority on this point, but, in our opinion, the answer to this question is that limitation commences to run from the due date of the mortgage-debt. This seems to us to be only reasonable and fair, and in accordance with the proper interpretation of the law.

12. The second mortgagee, by his purchase at the sale in satisfaction of his mortgage-debt, cannot acquire any right of redemption which he had not as mortgagee. It has been suggested that, as he then had the right to redeem the prior mortgage, he had the right to redeem within the period of limitation fixed by Article 143 of Schedule II of the Limitation Act and that the acquisition of this right to redeem, in itself, gave him a title to enforce his right within that period of limitation, or, at least, within 12 years from the date of his purchase, as provided by Article 134 of the same Schedule of the Limitation Act.

13. We think that such a view is unreasonable and incorrect. The omission of the prior mortgagee to include the second mortgage in his suit has been held by this Court not to deprive the second mottgagee of his right to redeem the prior mortgage, but it cannot be held that this interpretation of the law, which is intended merely to save his, right as second mortgagee, gives him any additional right, or extends the period during which, under the law, he can sue to enforce his rights. The right to redeem was held not to be lost. It was not held, and, in our opinion, it was not intended to beheld, that a fresh period to enforce his right to redeem under his mortgage was given to him from the date of the purchase. We held that Articles 134 and 148 of Schedule II of the Limitation Act have no application in this case. The article that applies is Article 132 of that schedule under which limitation begins to run from the date when the mortgage-debt became due. The purchasers from the second mortgage by their purchase acquired no rights greater than those which their vendor had. The present suit is, therefore, barred by limitation.

14. We accordingly decree the appeal, set aside the order of the lower appellate Court and direct that the case be sent back to that Court to be disposed of in accordance with law. The appellant is entitled to his costs in this Court. We assess the hearing fee at five gold mohurs.


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