GAVIYA AND Vs. LINGIAH

JUDGEMENT

(1.) This appeal has been referred to a Division Bench as the learned Judge who heard it felt that the question of limitation involved for decision is of importance and has to be settled in the light of the conflicting rulings about it in 47 Mys HCR 337 (A) and Sundararaja-char v. Vartakavardhini Bank, Ltd., 52 Mys HCR 118 (B) and the view of the Full Bench sought for in It. A. No. 20 of 50-51 (Mys.) (C). These cases were concerned with the starting point of limitation for enforcing a claim of a co-mortgagor for reimbursement from other mortgagors or monies paid in excess of what is due by him to discharge a mortgage. The observations in one of the cases lend support to the construction that the period of limitation is to be reckoned from the date of the mortgage and not from the date of payment but the Full Bench held otherwise.

(2.) The suit from which the present appeal arises is not that of a co-mortgagor but by a person who is a purchaser of the mortgaged property from one who had no right to the same and he seeks reimbursement of amounts paid by him in discharge of the mortgages. The properties admittedly belonged to Racha Boyee who by hypothecating these at first to defendant 4 and later to father of defendant 5 borrowed monies from them. After his death, two suits were filed Oil the foot of the respective mortgages against his daughter and the 3rd defendant alleged to be his adopted son. With the consent of the daughter the suits were decreed against her and defendant 3. Subsequently defendant 3 sold the mortgaged properties to plaintiff on 19-3-1943 and he Paid up the amounts due under the decrees. Possession, of the properties had to be given up by him to defendants 1 and 2 who are sons of the mortgagor's daughter on account of a decree obtained by them against defendant 3 that he is not the adopted son of Racha Boyi and that they alone are entitled to the properties. The date of that decree is 26-2-1946, the Payments were made by plaintiff during 1943 and 1944 and the present suit was instituted on 21-9-1948 for recovery of these amounts from defendants 1 and 2 personally and also the mortgaged properties alleging the existence of a charge thereon in his favour with respect to the said amounts. Only defendants 1 and 2 contested the suit and their principal pleas are that plaintiff being a purchaser from a person without any title to the property has to be regarded as a volunteer not entitled to reimbursement and that the claim is barred by time. The objections have been negatived in both Courts and a decree for realisation of the amounts by sale of the properties has been granted. The decree is challenged by defendants 1 and 2 in this appeal.

(3.) The finding that the suit is within time is based on the view that the case is governed by Article 97 of the Limitation Act which relates to a suit "for money paid upon an existing consideration which afterwards fails." Transfer of title to and possession of the properties being the consideration for the sale to plaintiff, deprivation of possession by virtue of the decision that the vendor had no right in the property has been regarded as constituting failure of consideration and the period of three years prescribed by the Article is computed from that date. The Courts below have failed to notice that this is not a suit either for refund of purchase money or for relief from the vendor, who is the 3rd defendant. Defendants 1 and 2 were not parties to the sale and properties belonging to them are alleged to be liable for the amounts. Sri Krishnamurthy learned counsel for the respondent did not justify the application of this Article to the case and referred to Article 120 as the appropriate one relying on Kayarohana v. Subbaraya, ILR 33 Mad 250 : (AIR 1916 Mad 470) (D) and" Sundara Aiyar v. Ananthapadmanabha Aiyar, AIR 1923 Mad 64 (E), but these did not involve the determination of the availability or enforcement of a charge such as that alleged by plaintiff. Article 120 is residuary in terms meant to be invoked when the circumstances are such as not to attract the operation of any other Article and prescribes 6 years as the time within which the suit is to be filed. The difficulty for resorting to this Article is that enforcement of a charge is provided for by Article 132 and unless this is shown to be inapplicable to the case, the residuary provision cannot be resorted to. Article 120 affects, if at all, the claim against defendants 1 & 2 personally and the suit is well within time even if the period of limitation is regarded as 6 years under this Article. Whether any of the Articles Which shorten the period of limitation to three years applies to the suit need not fee examined as the circumstances do not warrant in any event imposition of personal liability on the appellants for payment of the amounts. It is not suggested that defendants 1 and 2 ever asked the plaintiff to pay the decree-holders or that the payments were made to their knowledge or with their consent. The decree was not executable against defendants 1 and 2 personally and only enabled the decree-holders to proceed against the properties. The plaintiff cannot extend or increase the liability which was confined to the property to that of the individual or acquire higher rights than those of the mortgagee decree-holders by paying them off. For these reasons decree cannot be passed against defendants 1 and 2 personally for payment and the question of limitation regarding this does not arise.