SATIS CHANDRA PURKAIT Vs. NILRATAN PURKAIT

JUDGEMENT

(1.) This is the Plaintiff's appeal arising out of a mortgage suit. The suit has been dismissed by the two Courts below but on different grounds. According to the learned Munsif, the suit was premature. According to the learned District Judge, who heard the appeal from the learned Munsif's decision, the suit was time-barred. In the result, therefore, the suit was dismissed by both the Courts below. Against this decree of dismissal, the present appeal has been preferred by the Plaintiff.

(2.) The facts are a little complicated but they may be briefly stated as follows. On Aug. 12, 1926, the Defendant mortgaged the properties described in schs. ka and kha of the present plaint to the Plaintiff by two mortgages for Rs. 200 and Rs. 100, respectively. The due date for the payment of the mortgage money under each bond was March 14, 1927. The payment, however, was not made and on Oct. 15, 1927, the Defendant mortgaged some of his other properties to the Plaintiff for Rs. 50. On this last mortgage, a suit was brought in which on April 24, 1933, a preliminary decree was obtained by the mortgagee. This decree was made final on May 20, 1933 and in execution of this decree the mortgaged properties covered by the third mortgage bond were sold and purchased by the mortgagee decree-holder on Sept. 15, 1934. Thereafter, the mortgagee decree-holder obtained a personal decree against the mortgagor judgment-debtor and in execution of this personal decree the present properties of ka and kha schs. which were the subject-matter of the first two mortgages were also sold and purchased by him. On July 30, 1941, the mortgagor judgment-debtor filed an application under Sec. 36 of the Bengal Money Lenders Act for re-opening the decrees and the said application was granted by the trial Court and also by the lower appellate Court with some modification, the learned Judge eventually passing a new decree towards the end of 1944 directing payment of the amount of this new decree in eight, annual instalments beginning from Dec., 1944. There was also an order for restoration of possession to the judgment-debtor in terms of Sec. 36(2)(e) of the Bengal Money Lenders Act with the usual condition that in default of payment of any of the instalments the possession would be restored back to the decree-holder.

(3.) In this state of things, on Jan. 2, 1946, the present suit was instituted by the mortgagee for recovery of his dues under the first two mortgages, dated Aug. 12, 1926. Naturally, the mortgagor objected that the suit was barred by limitation. It was also taken as a defence that the suit was not maintainable presumably on the view that it would be premature until the mortgagor had got back title to the properties. The learned Munsif, on a consideration of the law, came to the conclusion that, in the facts which had been stated above, it was a case of what is usually known as suspension of limitation and, in that view of the matter, he held that the suit was not time-barred. He was. however, of the opinion that, as, until the last payment under the instalment decree had been duly made by the mortgagor judgment-debtor, the title would remain with the mortgagee decree-holder auction-purchaser, at the date of the present suit that title had remained with the mortgagee and that, accordingly, the suit for recovery of the present mortgage dues against the mortgagor was premature and was not maintainable. In the above view of the matter, the learned Munsif dismissed the Plaintiff's suit.