NANDJEE SAHU Vs. MANGAL BACHIA AND

JUDGEMENT

(1.) THIS second appeal arises out of a suit whereby the plaintiff sought to enforce a mortgage bond against the defendants. In the plaint, the document was described as a simple mortgaged deed and a decree was claimed under Order XXXIV. Rule 4 C. P. C. by sale of the mortgaged property. The courts below have dismissed the suit on the ground that, in view of the provisions contained in the U. P. Regulation of Agricultural Credit Act 1940 and the U. P. Zamindari Abolition and Land Reforms Act of 1951 the mortgage decree claimed by the plaintiff could not be passed in his favour. So far as a simple money decree is concerned, the lower appellate court held that the plaintiff was not entitled to the same as the suit was brought beyond a period of six years from the date when the money sued for had become due and therefore, the said remedy was also time barred. In this second appeal, the plaintiff appellant's counsel, Sri Dhanan jai Prasad, has contended that the courts below were wrong in not passing a simple money decree in favour of the plaintiff. He contended that it was not a case of mortgage but a case of charge on the property and, therefore, the rule of 12 years' limitation was not applicable. In my opinion, whether it was a case of mortgage or charge on the property makes no difference because, under Article 132 of the old Limitation Act of 1908 which applied to the facts of the case, the expression used was "to enforce payment of money charged upon immovable property". It is well known that the expression 'charge' in this Article includes mortgage also. Thus, whether it was a suit for enforcement of a mortgage or a charge on the property in both situtions the period of limitation would be 12 years. However, in applying the period of limitation, for the enforcement of the personal covenant to pay contained in a mortgage bond or in a document creating the charge, the rule of limitation is not 12 years but either three years or six years dependent on whether the document is unregistered or a registered one. If no mortgage decree is passed then a simple money decree can be passed only within the period of limitation which would be, as stated above either a period of three years or a period of six years. If a mortgage decree is passed the rule of 12 years, even then, so far as the decree on the basis of personal covenant to pay is concerned, the rule of three years' limitation or six years' limitation will be applicable. Therefore, irrespective of whether the mortgage decree is passed or not, the simple money decree can be passed only when the suit is filed within a period of 3 years from the date when the money accrued due in case the document is unregistered and, in case the same is registered, within a period of six years when such money becomes due. See Sri Nathji and others v. Mt. Parma Kunwar (1) and Ram Din v. Kalka Prasad (2). Learned counsel for the plaintiff appellant has not disputed that in the instant case in view of the provisions of U. P. Act I of 1951, no decree under Order XXXIV, Rule 4 C. P. C. could be passed in respect of the property which was hypothecated. He concedes that in the instant case the only relief to which his client would have been entitled was the relief for a simple money decree but the said relief could not be granted to him in view of the admitted fact that the suit was filed beyond a period of six years from the date when the amount had become due under the deed in question. The appeal accordingly fails but, in the circumstance of this case, there will be no order as to costs.