NAGU TUKARAM GHATULE Vs. GOPAL GANESH GADGIL

JUDGEMENT

(1.) THIS appeal raises an interesting question as to limitation. In the suit from which the appeal arises the plaintiff had claimed accounts of the mortgage against defendant 1 and he had asked for a decree for redemption and possession of the property which is the subject-matter of the mortgage. The trial Court had held that the suit was barred by limitation. In the appeal preferred by the plaintiff a contrary view has bean taken, with the result that the decree of dismissal passed by the trial Court has been set aside and the plaintiff's suit has been remanded to the trial Court for taking accounts and for passing the usual preliminary redemption decree. It is this order which is challenged before us by Mr. Patwardhan on behalf of defendant 2.

(2.) IT appears that Narhari and Aba, who were undivided brothers, owned five pieces of land. On l-5-1920, they executed a simple mortgage in respect of three fields, to Rupchand, who is defendant 1, for Rs. 1,300. We are concerned with these three fields in the present appeal. On 8-7-1922, the two brothers mortgaged the said three fields and two more in sample mortgage to Umabai for Rs. 1,500. Umabai brought a suit to enforce her mortgage (Civil Suit No. 518 of 1925 ). She did not implead the prior mortgagee to this suit, A consent decree was passed in her suit on 8-1-1927, under the Dekkhan Agriculturists' Relief Act, The amount due to Umabai WES found to be Rs. 2,500, and it was made payable by annual instalments of Rs. 250. The decree provided that if the judgment-debtors made a default in the payment of two instalments, the whole of the decretal amount would become recoverable. The two defaults occurred and Umabai filed darkhast No. 933 of 1930 to recover her amount by sale of the mortgaged property. On 26-8-1931, the properties were put to sale at an auction sale and Umabai herself purchased the properties with leave of the Court. Sale certificate was issued to her on 2-4-1932, and she obtained possession on 21 and 25-12 1932.

(3.) WHILE these proceedings were pending, Rupchand, the prior mortgagee, sued on his mortgage (Civil Suit No. 615 of 1929 ). This suit was brought against the mortgagor and the puisne mortgagee was not impleaded to it. On 29-11-1929 a decree was passed in this suit. This decree was also under the Dekkhan Agriculturists' Relief Act. It provided for the payment of the decretal amount of Rs. 2,600 by annual instalments of Rs. 250 and it contained a clause as to two defaults similar to the clause in Umabai's decree. The inevitable defaults occurred and the mortgagee filed darkhast No. 1103 of 1932, in these darkhast proceedings Umabai intervened and filed a written statement. She asked for lime to redeem Rupchand and prayed for instalments. The prayer for instalments was not favourably considered, but she was given two months' time to file a suit to exercise her right of redeeming Rupchand. Since she did not file a suit within the time granted to her, the execution proceedings continued and the auction sale was held on 19-3-1034, and the property was purchased by the decree-holder himself with the permission of the Court. Sale certificate was issued on 11-4-1934, and the decree-holder entered into possession on 27-4-1934. Defendant 2 has purchased this property from defendant 1 for Rs. 3,500 on 29-9-1940. Similarly, the plaintiff has purchased the three lands in suit from Umabai on 21-7-1947, for Rs. 500. Having purchased this property from Umabai, the plaintiff has brought the present suit on 14-4-1943, for accounts of the mortgage in favour of Rupchand, for redemption of the said mortgage and for possession of the suit property. Thus the conflict is between two rival purchasers and the principal point which falls to be considered is, whether the plaintiff's suit is in time.