LINGAIAH Vs. CHIKKAHONNALAGAIAH

JUDGEMENT

(1.) The suit for recovery of money instituted by respondent-1 was dismissed by the trial Court on the preliminary question that it was barred by limitation, but the Civil Judge, in the appeal preferred by the plaintiff, reversed that decree and remanded the matter for a decision on the merits. So the 1 st defendant appeals.

(2.) On 14th May 1967 the 1st defendant, why is the father of defendants 2 to 6, borrowed from the plaintiff a sum of Rs. 1,600/-executing a registered mortgage deed mortgaging the suit schedule properties and also agreeing to repay the money in five years from the date of the said mortgage. The mortgage deed purports to be a usufructuary mortgage, but the mortgagor did not deliver possession of the properties to the plaintiff. He continued to remain in possession and also defaulted to pay the loan. Plaintiff, therefore, brought a suit to recover the amount of Rs. 2,000/- inclusive of the interest said to be due as orally agreed upon by the parties. He has also asked for sale of the suit schedule properties for realisation of the decretal amount in the event ot tho defendants failing to pay the same. The suit was based on the cause of action which, according to the plaintiff, was on 14th May 1962, the stipulated date for the repayment of the amount and the failure thereof by the mortgagor.

(3.) One of the contentions raised by the defendants was that the suit was barred by time and ought to have been brought within twelve years from the date of execution ot the mortgage and not from the stipulated date for the repayment of loan by the mortgagor. The trial Court following the decision of this Court in Puttamadamma v. Puttappa (1967 (2) Mys LJ 56) : (AIR 1969 Mys 20) accepted the contention of the defendants and held that the suit was barred by limitation and accordingly dismissed the suit. But, the learned Civil Judge, in the appeal preferred by the plaintiff, reversed that decree holding that the decision of this court in Puttama-damma's case is not a good law in view of the decision of the Supreme Court in Monimala Devi v. Indu Bala AIR1964 SC 1295 , [1964 ]5 SCR635 . He held that the plaintiff was entitled to bring the suit for recovery of the mortgage money within twelve years from 14th May 1962, the date prescribed for repayment as per the covenants in the mortgage deed. It seems to me that it is not necessary to consider the correctness of the view taken in Puttamadamma's case, Upon the facts revealed in that Judgment, there was no stipulation by the mortgagor to repay the mortgage-money within any prescribed period. If there was any such covenant, the mortgagee could have enforced the covenant to ret-over the mortgage-money under Section 68(1)(a) of the Transfer of Property Act. That right conferred by Section 68 is not a right to enforce the mortgage, but only a right to sue tor the mortgage-money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. For a proper elucidation, let me set out Section 68: