NARAIN RAM KALWAR Vs. RAM LALLA PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession after redemption of a mortgage. The facts are as follows : On 7-2-1898, Mt. Pachni and Hansula executed a usufructuary mortgage of the house in suit is favour of one Sarju Prasad. It wag provided in the mortgage that the mortgagor shall be entitled to make the payment within sixty years from the data of the mortgage. Mt. Pachni and Han-aula, mortgagors, died and Munnu, their successor-in interest sold the equity of redemption to the plaintiff by sale-deed dated 15-1-1945. Sarju Prasad, the mortgagee, also died leaving several heirs. Kamta, one of the heirs of Sarju Prasad, obtained the mortgagee rights in a partition between the heirs. The mortgagee rights were put up for sale at an auction in execution of a decree against Kamta and were purchased by Mt. Saraswati, On 5-1-1932, Mt. Saraswati mortgaged the house to Deokinandan alleging herself to be the owner of the house and not merely the mortgagee. On 19-12-1988, Mt. Saraswati sold the house to Deokinandan in her capacity as owner of the house. The plaintiff filed the suit which has given rise to this appeal on 1-2-1945.

(2.) The case for the plaintiff was that he had come to know of the transfer in favour of Deokinandan only a few days before the institution of the suit. The trial Court held that the suit was either premature or barred by limitation under Article 134, Limitation Act. The lower appellate Court held that Article 134, Limitation Act, did not apply to the case as, there being a condition for the payment of the mortgage money within sixty years, the cause of action for redemption did not arise before the expiry of sixty years and Article 134 could not apply to a case in which cause of action for redemption bad not arisen to the mortgagor. He held that if Article 134 applied, the suit was not barred by limitation because the plaintiff had come to know of the sale in favour of Deokinandan shortly before the institution of the suit. He, therefore, held that the suit was premature and dismissed the appeal, Against this decree the plaintiff has come up in second appeal to this Court.

(3.) It has been urged on behalf of the plaintiff that the suit fell within the purview of Article 134 and was neither premature nor barred by limitation.