PUTTAMADAMMA Vs. PUTTAPPA

JUDGEMENT

(1.) On March 20, 1944 the defendant who is the appellant in this court executed a registered usufructuary mortgage deed for a sum of Rs. 200 in favour of the plaintiff. It was provided by the mortgage deed that the mortgages who is the plaintiff should be in possession of the mortgaged property for a period of fifteen years, and that there could be a redemption after the expiry of that period. On June 30, 1959 the plaintiff brought the suit out of which this appeal arises, and the decree which he sought, after he was permitted to amend his plaint, was a decree for sale of the mortgaged property. The plaintiff made an allegation that the defendant never delivered possession of the mortgaged property to him, and that she was herself in wrongful possession. The defendant repudiated the truth of that allegation, but in her written statement the defendant contended that the suit was barred by limitation and that it was not maintainable. It is not necessary to refer to the other contentions which the written statement incorporates. The Munsiff accepted both these contentions and dismissed the suit, but the Civil Judge in the appeal preferred by the plaintiff, reversed the decree of the Munsiff and gave the plaintiff the decree he wanted. So the defendant appeals.

(2.) Mr.Vedavyasacharya appearing for the defendant made three submissions. The first was that the plaintiff could not ask for decree for sale of the mortgaged property. The second was that the suit was not maintainable, and the third was that in any event the suit was barred by limitations.

(3.) There is no substance in the first submission that the plaintiff could not ask for a decree for sale since, on the allegation in the plaint that the defendant did not deliver possession of the property which was usufructuarily mortgaged which was not denied, the plaintiff became clearly entitled to a decree for sale under section 68(1)(d) of the Transfer of Property Act.