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Jogendsa Nath Singh and ors. Vs. Mohanlal Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.995
AppellantJogendsa Nath Singh and ors.
RespondentMohanlal Khan and ors.
Cases ReferredRash Bihari Das v. Kunjabihari Patra
Excerpt:
limitation act (ix of 1908), schedule i, article 132 - suit to recover value of paddy secured under mortgage--limitation. - 1. this appeal arises out of a suit to recover the value of paddy due upon a mortgage bond by the sale of immoveable properties mortgaged to the plaintiffs' predecessor.2. the court of first instance gave a decree to the plaintiff but that decree was reversed on appeal by the learned subordinate judge on the ground that it was not a suit to enforce payment of money charged upon immoveable property and that, therefore, article 132 of the limitation act did not apply. he relied upon the decision in the case of rash bihari das v. kunjabihari patra 37 ind. cas. 807 : 24 c.l.j. 348. all the terms of the mortgage-bond, and specially the conditions under which the mortgage was to be enforced in default of payment, however, do not appear from the report of that case.3. on the other hand, in the.....
Judgment:

1. This appeal arises out of a suit to recover the value of paddy due upon a mortgage bond by the sale of immoveable properties mortgaged to the plaintiffs' predecessor.

2. The Court of first instance gave a decree to the plaintiff but that decree was reversed on appeal by the learned Subordinate Judge on the ground that it was not a suit to enforce payment of money charged upon immoveable property and that, therefore, Article 132 of the Limitation Act did not apply. He relied upon the decision in the case of Rash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 807 : 24 C.L.J. 348. All the terms of the mortgage-bond, and specially the conditions under which the mortgage was to be enforced in default of payment, however, do not appear from the report of that case.

3. On the other hand, in the case of Nilmoney Sinha v. Hardhan Das 2 Ind. Cas. 111 : 13 C.W.N. CLXXXIV (184) notes, where the deed recited that the land was given to secure payment of interest in kind, Mookerjee, J., held: 'The substance of the transaction was that the land was made security for the value of the paddy, because upon failure to deliver the paddy, the mortgagee would be entitled not to claim specific paddy but merely to recover the price thereof; in other words, the parties contemplated that should it be necessary for the mortgagee to enforce his security the land would be liable for the value of tie paddy payable as interest. In my opinion, it is a reasonable construction of Article 132 to hold that, in a case like this, the interest, which was the value of the paddy, though variable from time to time, was charged upon the mortgaged premises.'

4. In the present case the mortgage-bond provided that in default of payment of the paddy and the interest, which was also provided to be paid in paddy, the mortgagee would be entitled to attach and sell the mortgaged property and realise the dues, and if that was insufficient, be would be entitled to realise them also from other moveable and improvable property of the mortgagor and from his person. It is clear that, upon failure to deliver the paddy the mortgagee was entitled to recover, money and not to claim specific paddy.

5. We may also refer to the case s of Sripati Lal Dutt v. Sarat Chandra Mondal 46 Ind. Cas. 78 : 22 C.W.N. 790; Sridhar Chandra Maiti v Ram Gobinda Jana 50 Ind. Cas. 608 : 29 C.L.J. 368 and to the unreported case in Second Appeal No. 2556 of 1917 decided by us On the 23rd April 1919 Since reported as Indra Narain Shao v. Dijabar Samanta, 51 Ind. Cas. 849 : 23 C.W.N. 919 : 47 C. 125.--Ed. in all of which the case of Rash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 807 : 24 C.L.J. 348 was distinguished.

6. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Munsif.

7. No order as to costs.


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