(CHINTA) CHANDRAMMA Vs. GUNNA SEETHAN NAIDU

JUDGEMENT

(1.) Defendants 3 and 5 in this case were co-parceners in a joint family, defendant 3 being the elder. In 1908 defendant 3 executed a simple mortgage in favour of one Joganna for Rs. 100, the date for payment being the 6 June, 1909. In 1909 defendant 5 sued defendant 3 for partition and got a decree for a half share of their property, including a half share of the property mortgaged to Joganna. He also got a decree against defendant 3 for costs. His decree1 for costs he assigned to defendant 2, who in execution of it bought defendant 3's half share of the mortgaged property, in 1912. Afterwards defendant 5 sold the half-share which he had got by his partition decree to defendant 1. In 1914 Joganna sued for sale on his mortgage, making defendant 3 and no one else a party to that suit. He got a decree for sale, and in execution of that decree the plaintiff in the present suit eventually bought the mortgaged property in Court auction in 1924. The plaintiff in 1926 brought his present suit to recover possession; but in 1927 he put in an application to amend his plaint in order to get a decree that defendants 1 and 2 should be given an opportunity to redeem or to deliver possession to him and that, if they failed to do so, he should have another decree for sale against them. The District Munsif, who tried this suit, refused that application for amendment and dismissed the suit. On appeal the learned District Judge has allowed the amendment and remanded the suit to the District Munsif for fresh disposal. The appeal before us is against that order of remand.

(2.) Now, it will be seen, that defendant 5 got in his partition suit a decree for half of the property covered by the mortgage, and that half he subsequently transferred to defendant 1. Defendant 2 in Court auction bought defendant 3's half share. So in effect defendants 1 and 2, even if defendant 3 ever had an exclusive right to the property mortgaged, have become transferees of the whole equity of redemption. Neither defendant 5 nor his transferee, defendant 1, nor defendant 2 was a party to Joganna's mortgage-suit. The result of that, it cannot be disputed, is that that suit did not affect their rights in any way. As they were left out of Joganna's suit, he could, and the plaintiff after his purchase could, have brought another suit against defendant 1 or defendant 2 or both for sale on the mortgage, That is clear and was decided in Venkat Reddy V/s. Kunjappa Goundan (1923) I.L.R. 47 Mad. 551 : 46 M.L.J. 391. The learned Judge recognises that; but he is of opinion that time would run for such a suit from the date of the mortgage decree. I think it is obvious that he is wrong in that point. Time for the second suit, if brought upon the mortgage, must run from the date for payment, or that date as extended by any circumstances which would extend it, and not from the date of the mortgage decree. That point was explicitly decided in T.C. Bose V/s. Obedur Rahman Chowdhury (1928) I.L.R. 6 Rang. 297. Now it happens that a second suit for sale on this mortgage was time-barred, not only at the date when the plaintiff made his application to amend his plaint, but at the date when he put in his plaint itself in 1926. The learned District Judge has in effect by the amendment allowed the plaintiff to change the entire character of his suit, to change his suit for possession into a suit of another character, which was barred at the date when he put in his plaint. That is a kind of amendment which can obviously not be allowed.

(3.) But Mr. Govindarajachari for the plaintiff has tried to find another prop for the learned District Judge's decision. He represents that the amendment embodied not only a prayer for a decree for sale but for foreclosure and recovery of possession. The amendment itself does not put that explicitly. But, even if that was intended, as Mr. Govindarajachari has said, it would not be a prayer for foreclosure only. It is obviously a prayer for something more--for foreclosure and for possession. Apart from the fact that foreclosure and recovery of possession are not remedies available to a simple mortgagee, if such a liability could be imposed upon defendants 1 and 2, it would obviously be something more serious to them than liability to a decree for sale on the mortgage. If a decree for sale on the mortgage was still possible, that would mean that a preliminary decree might be made against them, giving them an opportunity to redeem, and, if they did not, the property would be put up for sale, and they would be entitled to any surplus over the amount due to the plaintiff. If they were liable to foreclosure and recovery, obviously there would be no surplus to go to them.