KENCHAPPA Vs. ROKHADE NAGAPPA

JUDGEMENT

(1.) This appeal raises an important question of limitation and nature of the right of a co-mortgagor who has discharged the mortgage debt for reimbursement. In Sundaramma v. Thimmiah, 47 Mys. H.C.R.337, Ghani J. and Subramanya Iyer J. held that "Limitation counts from the date on which the money under the first mortgage became due and not from the date when the subsequent mortgagee paid it off." Though the case was one in which the right of the puisne mortgagee was involved for decision, there is an observation 'Whether it was the mortgagor or a puisne mortgagee or a subsequent mortgagee that paid of the earlier mortgage, the rights of the earlier mortgagee whatever they were devolved on one who paid it up." In Sundarajachar v. Vartaka Vardhini Bank, Ltd., 62 Mys. H.C.R.118 the payment by a co-mortgagor is held to be sufficient to create fights under section 82 of the Transfer of Porparty Act. Shanbhogue Hanumantha Tao v. Suddula Shankarappa, 40 Mys. H.C.R.298 lends support to the view that payment creates a charge. The opinion expressed by some other High Courts as regards the time within which the person making payment, such as a co-mortgagor, can enforce hfs right is different from that in Sundramma v. Thimmiah, 47 Mys.H.C.R.337. The correctness of this decision, in our opinion, needs to be determined by a Full Bench. The appeal may be posted for disposal by a Full Bench.

(2.) The judgment of the Full Bench was delivered by VENKATArAMAIYA CJ. This appeal has been referred to a Full Bench by the Division Bench before which it was posted for hearing as doubt was felt about the correctness of the view expressed in Sundaramma v. Thimmiah (3) on the question of limitation. It was held in that case "if therefore at the time when the puisne mortgagee sues to enforce the first mortgage by virtue of subrogation a suit by the first mortgagee is barred by time, the puisne mortgagee's suit is equally barred by time. This is the position which is accepted by the Calcutta, Madras and Patna rulings......... Limitation counts from the date on which the money under the first mortgage became due and not from the date on which the subsequent mortgagee paid it off whether the money paid was still due under the mortgage or under a decree obtained on that mortgage".

(3.) Applying this principle, the lower court has dismissed a suit filed by a person in the position of a co-mortgagor for recovery of amounts paid by him in excess of his liability as the interval between the due date for payment under the mortgage deed and the suit was more than 12 years although the suit was filed within that period from the date of payment. The material facts either admitted or proved are, that immovable property described in Schedule B of the plaint was hypothecated by defendant 3 in favour of defendants 1 and 2 under a registered deed dated 7-6-1927, the plaintiff who was subsequently adopted as a son by defendant 3 filed a suit against him for partition of the family properties and in execution of the decree passed therein the portion thereof described in the A schedule was allotted to plaintiff and the C schedule to defendant 3. Representatives of the mortgagees, viz., defendants 1 and 2 sued the plaintiff and defendant 3 in O.S.No. 50 of 34-35 on the file of the Subordinate Judge, Shimoga, for recovery of the mortgage debt. The suit finally came to an end by a decision of the High Court in E. A. No. 95 of 36-37 and to avert the sale of the mortgaged property for realisation of the decree debt, the plaintiff made payments from time to time between 1944 and 1948 in full satisfaction of the decree. The present suit was instituted on 21-1-1949 for recovery of Rs. 4,306-10-0 by sale of 0 schedule property on the ground of its being subject to liability to that extent.