KANAKARAJ Vs. B V SUNDARAJA IYER

JUDGEMENT

(1.) THE main point that arises for decision in the present appeal preferred by the defendant relates to limitation, as t the period for which the respondents (plaintiffs) are entitled to recover the income of the properties which were subject to a possessory mortgage. The plaintiffs in the suit are the successors-in-interest of the mortgagor, while the sole defendant is the successor-in-interest of the mortgagee. The possessory mortgage in question was executed in April 1924 and by January 1938 the defendant became the ultimate assignee of the mortgage. The plaintiffs filed O. P. 48 of 1950 on the file of the Sub Court, Dindigul under secs. 9-A and 19-A of the Madras Agriculturists Debt Relief Act for a declaration of the amount due under the possessory mortgage, after invoking the benefit of scaling down and on 16-1-1951 the amount payable to the mortgagee was determined in the sum of Rs. 917. This amount was deposited into Court in O. P. 48 of 1950 and notice was also served upon the defendant. As the petition was not opposed the Court passed an order on 21-8-1951 granting the certificate that the mortgage debt had been fully discharged.

(2.) THE defendant preferred an appeal, C. M. A. 502 of 1951, to the High Court and the same was allowed by Mack J. , by his judgment dated 2-5-1954. The plaintiffs preferred L. P. A. No. 150 of 1954 and the Bench of this Court by its judgment D/- 28-3-1958 allowed the appeal and restored the order of the subordinate Judge. The defendant thereafter on 29-7-1959 surrendered possession of the properties covered by Kurien Chaco v. Ramakrishna, AIR 1952 Trav-Co. 552the possessory mortgage. The plaintiffs' attempt to recover rents and profits from the properties from the date of their deposit of the amount into Court till the mortgagee surrendered possession and the plaintiffs re-rendered proved futile resulting in the present suit O. S. 45 of 1960. The objection of the defendant that the claim for profits would be governed by Article 109 and therefore the plaintiffs should be restricted to a period of three years, was negatived by the trial Court, which held that the claim for the entire period from 16-1-1951 to 29-7-1959 was in time and passed a decree against the appellant for a sum of Rs. 12,750, on the basis that the total income for which the defendant would be liable would be 882 kalams of paddy at the rate of Rs. 15 per kalam. Two points arise for decision (1) what is the proper article of the Limitation Act applicable to the claim made in the suit and (2) the quantum of mesne profits and the price of paddy per kalam. Sri A. V. Narayanswami Iyer, learned counsel for the appellant, urged that after the plaintiff deposited the amount as determined in the proceedings under the Debt Relief Act, the after the Court granted a certificate that the mortgage had been discharged after notice to the mortgagee, the latter ought to have re-delivered the mortgaged properties, the possession of the mortgagee thereafter was wrongful and unlawful as being that of a trespasser, that the claim for income from the properties was clearly a claim for mesne profits within the the meaning of Article 109 of the Limitation Act, 1908, and the plaintiffs cannot therefore recover for a period of more than three years. He urged that the relationship of mortgagor and mortgagee ceased and came to an end when the court granted a certificate of discharge in O. P. 48 of 1950 and that thereafter, the only right of the plaintiffs was to recover possession of the properties from the mortgagee within the time limit allowed by law along with the mesne profits and that so far as the claim for mesne profits was concerned, the plaintiffs should life a suit every three years. He further urged that the fact arising out of the mortgage transaction, the law imposes a duty upon the mortgagee to surrender possession of the properties and to render an account for the rents and profits after the discharge of the mortgage would not make the possession of the mortgagee anything other than wrongful or as that of a trespasser, or alter the character of the claim of income other than one for mesne profits. The substance of his argument is that whatever may be the obligation of the mortgagee consequent upon the discharge of the mortgage, whether contractual or statutory, the claim for rents and profits would be governed only by Article 109 of the Limitation Act. In the course of his arguments and when questions were put to him, learned counsel for the appellant took up the definite stand that after the mortgage was discharged, it was for the mortgagor to elect whether to sue for recovery of possession along with profits or to sue for recovery of possession along or to sue for profits alone subject to any bar under Order 2, Rule 2 Civil P. C. , and that if the mortgagor elects to wait to recover possession taking advantage of the larger period of limitation to file a suit for recovery of possession the mortgagor would be exposed to the risk of a plea of limitation under Article 109 of the Limitation Act with respect to the income and that his peril, the mortgagor is bound to sue for recovery of the income every three years. He urged that this result necessarily flows from the language of Cols. 1 and 3 in Article 109 of the Limitation Act which is unqualified and absolute.

(3.) SRI Rajah Aiyar, learned counsel for the respondents contended that the correct and appropriate Article applicable to the suit is Article 105 of the Limitation act which provides for the suit by a mortgagor after the mortgage had been satisfied to recover surplus collections received by the mortgagee, the time limit is three years to commence from the date when the mortgagor re-enters on the mortgaged property. He contended that under the procedural law regarding litigation between mortgagor and mortgagee either in a 'suit for redemption or in a suit for foreclosure or for sale, there ought to be a final and complete settlement of all rights, equities, and accounts between the mortgagor and mortgagee right upto the moment of actual redemption, foreclosure or the sale as the case may be and that either by way of a claim or a defence or a set off or as a counter-claim of the defendant the parties ought to raise all pleas, legal and factual, and seek all the reliefs flowing from the relationship as mortgagor and mortgagee and that the law of procedure does not permit piecemeal and truncated litigations between them leaving some portion of the dispute and the awarding of reliefs thereto for future adjudication in some other proceeding, except under exceptional circumstances where the statute itself specifically provides for such piecemeal and plurality of litigations. He also drew our attention to a recent decision of the Supreme Court reported in gyarsibai v. Dhansukhlal, in which this rule of the insistence of the finality of all disputes in one single litigation between the mortgagor and mortgagee was applied and was held, that at the time of the passing of the final decree, the Court must take into account the rents and profits received by the mortgagee between the date of the preliminary decree and the passing of the final decree. Mr. Rajah Iyer contended that Art. 105 of the Limitation Act embodies this procedural law governing suits between the mortgagor and the mortgagee and entitles the mortgagor to recover the surplus collections received by the mortgagee in a suit filed within three years after the mortgagor re-enters on the mortgaged property. He urged that the acceptance of the appellant's contention that the mortgagor should file a suit to recover surplus collections every three years while yet he had ample time (under the Limitation Act) either to file a suit for redemption or to file a suit for possession would be opposed to the basic principles of law of procedure and the mortgage law.