(1.) After stating the facts and disposing a minor point his Lordship proceeded
(2.) Then the second point raised by Mr. Ghokle was that the suit for foreclosure was misconceived when the transaction in suit evidenced only a usufructuary mortgage. It cannot be disputed that the present suit is a suit instituted only for foreclosure.The relief prayed for in the plaint is that if the mortgage amount is not paid as directed by the Court, the defendant should be ejected and plaintif's possession confirmed and he be held entitled to apply for a final decree debarring the defendant from all rights to redeem the mortgaged property. It is also undisputedthat a usufructuary mortgage cannot institute a suit for foreclosure in view of the provisions of section 67 of the Transfer of Property Act. But is the mortgage on which the suit is instituted a usufructuary mortgage as contened by Mr. Gokhle? We have been supplied with a copy of an official tanslation of the original mortgage deed which is Ex. Pl on the record. We direct that the copy be taken on the records of the appeal. The relevant portions of the mortgage deed may be set out here in below:
(3.) The third point raised by Mr. Gokhale is that the present suit which is instituted on 10-2-1954 is barred by limitation. The learned trial Judge held that Art. 147 of the Limitation Act which prescribes a period of 60 years for instituting a suit by a mortgagee for foreclosure or sale applied to the present suit and that even assuming that Art. 132 applied as was contended before him by the defendant. the suit would still be in time as it had been instituted within 12 years from the date when the mortgage money become due. In the view of the learned Judge the period of limitation whether under Art. 147 or under 132 started on the expiry of 9 years as stipuated in the mortgage deed.