DEVASY Vs. MALU

JUDGEMENT

(1.) The appellant filed a suit O.S. 867 of 1966 of the Munsiff's Court, Irinjalakuda for recovery of the amount due in respect of a possessory mortgage executed by the first defendant in his favour for an amount of Rs. 350/-. Under the terms of the mortgage, the plaintiff was to take the income and appropriate the same towards the interest of the mortgage debt after paying Rs. 2 - 12 - 9 as land tax. The mortgage deed stipulated that the mortgagee should surrender possession of the property on payment of the mortgage money and that the mortgagor should pay the mortgage amount if and when a demand was made by the mortgagee. There was a lease back executed by the first respondent on the same date under which the first respondent undertook to pay an yearly rent of Rs. 44 - 12 - 9 inclusive of the land tax and deliver the receipt to the appellant. The balance rent was to be paid before the 8th of December every year. Since the first respondent did not pay any amount as per the lease deed, the appellant filed O.S. No. 87 of 1965 for eviction and recovery of possession of the property. But in view of Acts 31 of 1958, 2 of 1961 and 1 of 1964, the suit was dismissed as not maintainable without prejudice to the right of the appellant to recover the mortgage amount, treating the mortgage and lease back as a simple mortgage. The suit O.S. No. 867 of 1966 was filed accordingly. Respondents 2 to 13 were impleaded in the suit as persons residing in the plaint schedule property along with the first respondent. Respondents 1 and 2 contested the suit and contended that it was barred by limitation. There is also a plea that the mortgage was not supported by consideration which is not relevant for the purpose of this appeal.

(2.) The Trial Court held that the suit was barred by limitation and therefore non suited the plaintiff. In appeal, the finding was confirmed. The Second Appeal is preferred against the appellate decree.

(3.) The only point arising in the appeal is whether the suit is barred by limitation. There is no dispute that the relevant provision in the Limitation Act, which is applicable, is Art.62, which corresponds to Art.132 of the Limitation Act of 1908. Under the said Article, a suit to enforce payment of money secured by a mortgage or otherwise charged upon immovable property is to be filed within 12 years of the date when the money suit becomes due. Both the Trial Court as also the lower appellate court held that the money became due in the instant case on 8-2-1950 the date when the mortgage was executed. This finding is challenged by the appellant.