B R SUBBANNA Vs. M P KRISHNA IYENGAR

JUDGEMENT

(1.) This is a plaintiff's Second Appeal and arises out of a suit filed by him for the recovery of a sum of Rs. 4,000/- being the principal and interest executed by the respondent in favour of his father Rama Subbiah. The mortage-bond stipulated a period of six years from its date for redemption. It further stipulated annually and that interest at nine per cent. was payable annually and that if there was a default in its payment during any one of the years the mortage money without waiting till the stipulated period. The respondent did not pay the interest regularly as it fell due. Hence the mortage on 20/12/1938 issued a registered notice calling upon the respondent to pay up the entire mortage money with in ten days of the receipt of the notice. He further stated in the said notice that if the respondent failed to pay the amount without any further notice. In spite of this notice the mortgagor did not pay the mortage money but yet Rama Subbiah ( the mortgagee) did not file a suit for its recovery. Ramasubbiah the mortgage died in or about the year 1940, leaving behind him the appellant as his sole surviving heir. The appellant filed a suit for the recovery of the mortgage money on 12/6/1952 in the Court of the Subordinate Judge, Bangalore. The respondent in his written statement inter alia stated that the suit filed by the appellant on 12th of June 1952 was barred by limitation , the same having been filed twelve years after the money became due. He alleged that since Rama Subbiah had elected to enforce the default clause and had called for the entire amount by issue of a registered notice dated 20th December 1938, the amount covered by the mortgage bond became due immediately thereafter under Article 132 of the Limitation Act and as the present suit had been filed beyond twelve years, from the said had been filed beyond twelve years form the said date the same was barred by limitation. The learned Subordinate Judge accepted this contention of the respondent and dismissed the suit. The learned Subordinate Judge felt himself bound to follow and apply the decision of the High Court of Mysore reported in M. Govinda Rao v. Ramachandrachar, 19 Mys L J 447 in which it had been held that where the mortgage bond in which the time for payment of the mortgage debt had been fixed, stipulated that interest was to be paid every year regularly and that if there was failure to pay the interest at the time fixed every year the principal sum would be repaid immediately on demand, the suit filed for recovery of the mortgage money more than twelve years after the first default in the payment of interest was barred by limitation under Article 132 of the Limitation Act. The appellant preferred an appeal of the learned Principal Subordinate Judge to the Court of the District Judge, Bangalore. The learned Additional District Judge dismissed the appeal concurring with the trial Court in Mysore were bound to follow and apply the decisions in Naranappa v. Puttiah, 19 Mys CCR 169; 19 Mys LJ 447 and Nandhi Basappa v. Venkata Subba Rao, 28 Mys LJ 114 and that the right to sue in the instant case had accrued to the father of the appellant on 147th of June 1938 that is, on the date of the first default and therefore, the suit filed by the present appellant on 12th of June 1952 was barred by limitation under Article 132 of the Limitation Act being beyond twelve years of such default. The decision in Lasa Din v. Mt. Gulab Kunwar, AIR 1932 PC 207 was cited before the Courts below and it was urged that the law laid down by their Lordships of the Private Council in it should be accepted in preference to the decisions of the High Court of Mysore. The lower Courts rejected this Chief Justice Really in 19 Mys LJ 447 as an effective answer to it. The said observations are as follows :

(2.) It was urged by Shri Adinarayana Rao the learned council for the appellant that now a Full Bench of this High Court has held in Basappa v.State , 1958 -36 Mys LJ 580' (AIR 1959 Mys 1) that this High Court established under the States Reorganisation Act 1956 is not bound by the decision of the Chief Court of Mysore and of the High Court of Mysore delivered prior to 1/11/1958. We should accept the decision of their Lordships of the Privy Council reported in AIR 1932 PC 207 as the same has been uniformly followed and accepted by all the other High Courts in India and that we should hold that the suit filed by the appellant is within time and is not barred by function.

(3.) The only question for considerations in this appeal is as to the date on which the mortgage money became due under the mortgage deed Exhibit A. The document stipulates a period of six years for repayment of the mortgage money and therefore ordinarily the amount would have become due on the expiry of the period of six years, that is, on 14th of June 1940. As already stated this mortgagor by the said deed covenanted to pay interest at 9% per annum regularly and that at this interest for any year was not paid as and when it became due the mortgagee was at liberty to call for the whole amount forthwith without waiting for the stipulated period. The default clause upon which the defence was successfully founded reads as follows: