KUNJU KARTHIYAYANI Vs. PARAMESWARAN ACHARI

JUDGEMENT

(1.) The question for decision is one of limitation. That turns on the question whether the period for recovery of mortgage money claimed as due under S.68(1)(c) of the Transfer of Property Act, 1882 is six years or 12 years.

(2.) The facts are simple. On 9-12-1955 a mortgage of the suit property was taken by the plaintiff under a deed of Otti the copy of which is Ex. P-1. First defendant purchased the equity of redemption directing Ex. P1 mortgage to be redeemed. On the date of the sale deed itself he paid a part of the mortgage money to the plaintiff. The balance is still due. Plaintiff's case is that though the plaintiff did not put the defendants in possession on the same day, namely 16-7-1957 first defendant took forcible possession of the suit property and, therefore plaintiff lost the enjoyment thereafter. The suit is for recovery of the balance mortgage money due, on the allegation that, by the trespass committed by the first defendant plaintiff has lost the enjoyment of the mortgage security from 16-7-1957. The suit is filed on 13-11-1964, more than six years after the date of trespass, but within 12 years thereafter. If the suit is to be treated as one for recovery of money charged on immovable property, then Art.62 of the Limitation Act, 1963 would apply and the suit will not be barred. The suit would not have been barred even on the date the limitation Act of 1963 came into force, asunder the corresponding Art.132 of the Indian Limitation Act, 1908, the period is the same. But the defendant contend that the suit is barred since the claim for recovery of the balance mortgage money on the allegation in the plaint is really on for compensation and the Article applicable would be Art.120 of the Limitation Act of 1908. If that be the case, the period for filing the suit would have expired before the commencement of the Indian Limitation Act, 1963 and therefore the suit would be barred.

(3.) The appellant before me is the plaintiff in the suit against whom both the courts found concurrently that the suit was barred as he ought to have instituted the suit within a period of six years from 16-7-1957, the date when admittedly he lost the mortgage security. The claim to recover the mortgage money was considered as arising under S.68(1)(c) of the Transfer of Property Act.