KAMAKSHI AMMAL Vs. ANANTHANARAYANA SWAMI PILLAI AND ORS.

JUDGEMENT

(1.) THIS appeal was heard by Chandrasekhara Aiyar, J., in the first instance and was referred by the learned Judge to a Division Bench as an important question of law was raised and the point is not covered by any direct authority.

(2.) ONE Pal Kangani, the predecessor in interest of respondents 1 to 3 in this appeal obtained a preliminary decree for sale on a deed of simple mortgage executed by one Natesa Goundan, the appellant's deceased husband on the 11th October, 1924. The decree was passed on the 14th February, 1933, by the District Munsiff of Turaiyur in O.S. No. 5 of 1933. The final decree tallowed on the 9th January, 1934. During the pendency of that suit Natesa Goundan's sister, Mookayi, brought a suit against the appellant as the widow and representative of Natesa Goundan for a declaration of her title to certain properties including the properties mortgaged by Natesa and for other consequential relief. The mortgagee was impleaded as the second defendant in that suit and one of the issues was "whether the mortgage in favour of the second defendant by Natesa Goundan is binding on the plaintiff" (issue 5). The trial Court passed a decree declaring that the suit properties belonged to the second plaintiff (Mookayi's legal representative) and declaring also that " the mortgage deed executed by Natesa Goundan in favour of the second defendant in respect of items 1 and 2 of the plaint Schedule and the mortgage decree obtained by the 2nd defendant on his mortgage are not binding on him." From this decree which imperilled his security the mortgagee preferred, after an unsuccessful appeal to the first appellate Court, a second appeal to this Court which was also dismissed on the 6th August, 1941. The mortgage decree obtained by him having thus been declared to be invalid and inoperative, he made the application which has given rise to this appeal on the 25th August of the same year praying that a personal decree for the amount declared due under the preliminary decree with subsequent interest be passed against the assets of the deceased mortgagor in the hands of the appellant. In the affidavit filed in support of the application he referred to the proceedings in Mookayi's suit culminating in the dismissal of his second appeal to this Court, and stated that " as after the said decision the plaintiff and the defendants (mortgagor's representatives) have lost their rights in the mortgaged properties it is not possible to bring to sale in execution the properties relating to the decree in this suit." The application was opposed by the appellant herein on the ground that it was barred by limitation under Article 181 of the Limitation Act which prescribes for applications for which no period of limitation is provided elsewhere in the Act a period of three years commencing from the time " when the right to apply accrues." The appellant contended that the respondent's right to apply for a personal decree accrued as soon as the trial Court decided in Mookayi's suit that the mortgagor had no title to the mortgaged properties, that is, on the 20th July, 1936, and the present application made more than three years alter that date was barred. The District Munsiff accepted this contention and dismissed the application. On appeal by the present respondents the lower appellate Court held that the mortgagee's right to apply for a personal decree accrued only when is was ifnally decided that the mortgagor had no title to the property which he had mortgaged, that is to say, when this Court dismissed the mortgagee's second appeal on the 6th August, 1941, and that the present application filed a few days thereafter was well within time. Chandrasekhara Aiyar, J., in his referring order thought that this was a " sensible view," but doubted whether it was legally correct, having regard to the " analogous decisions " cited before him. We have come to the conclusion for reasons which we will presently indicate, that the view is not only sensible but also correct.

(3.) IT must now be taken as fairly settled that Article 181 of the Limitation Act is applicable to applications for a supplemental personal decree in mortgage actions. (Rama Venkatasubba Aiyar v. Shanmukham Pillai, (1913) M.W.N. 867 Pell v. Gregory, I.L.R. (19925) Cal. 828 Muhammad Iltifat Husain v. Alimunnissa Bibi : I.L.R (1918) All. 551) This was not disputed before us by Mr. S. Ramachandra Aiyar for the respondents. Now, Article 181 is the residuary article applicable to applications of all kinds and as such is content to define the starting point of limitation in general language " when the right to apply accrues." It is, accordingly, necessary in each case where the article is invoked, to see when having regard to the nature of the application, the applicant, first had the right to make it. It was contended for the appellant that the respondent's application was one made under Order 34., Rule 6, although there was or could be no sale of the mortgaged property under Rule 5, a sale being deemed to have taken place and to have realised nothing and that, inasmuch as the right to apply under that rule for a personal decree arises when the sale proceeds " are found insufficient to pay the amount due," limitation must be counted from the earliest moment when the mortgagor's want of title was established, i.e., the 20th July, 1936.