DORAISAMI NAICKEN Vs. PERU SU ARU PERIAKARUPPAN CHETTIAR

JUDGEMENT

(1.) Two questions relating to the law of limitation have been argued in this appeal. On the 8 April, 1926 the appellant obtained in the Court of the Subordinate Judge of Coimbatore a preliminary mortgage decree for Rs. 4,772 with interest and costs, amounting altogether to Rs. 5,856--6--6, against one Muthu Goundan and his two sons, a period of six months being allowed for redemption. The respondent was impleaded as the fifth defendant in the suit. He had obtained a money decree against the mortgagors and had attached the equity of redemption of the mortgaged properties. The attachment was continuing at the time of the passing of the preliminary decree on the 8 April, 1926. In the month of July 1926 the mortgagors conveyed the mortgaged properties to the appellant in satisfaction of the mortgage debt. Thereupon the appellant went into possession of the properties and remained in possession until 1932 when he was dispossessed by the respondent, who had caused them to be sold in execution of his decree and had become the purchaser at the Court sale. The properties were sold subject to the appellant's mortgage and on the 27 October, 1933 the appellant filed an application in his suit for a final decree for sale. The respondent pleaded that the application was barred by the law of limitation, but the Subordinate Judge and the District Judge on appeal held that it had been filed within time. The respondent then appealed to this Court and the appeal was heard by Patanjali Sastri, J., who allowed it. The present appeal is from the judgment of Patanjali Sastri, J.

(2.) The first of the two questions raised is whether Section 20 (2) applies here. If it does apply the appellant's application for a final decree is in time. Patanjali Sastri, J., held that the section did not apply and relied on the decisions of this Court in Mahomed Yusuf V/s. Narayanan Pillai , and Fallesatha Banu V/s. Mahomed Rashiuddin Quraishi (1934) 40 L.W. 595. The appellant says that the first decision is erroneous and the second decision has no application. He contends that the Calcutta High Court rightly decided the question in Ramcharan Chakrabarti v. Nimai Mandal (1921) 35 C.L.J. 58. The second question is whether the purchase of the properties by the respondent at the Court auction held in the execution proceedings instituted by him revived the appellant's right to have a final mortgage decree passed in his favour, irrespective of Section 20.

(3.) Sub-section (2) of Section 20 states that where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of the land shall be deemed to be a payment for the purpose of Sub-section (1), which deals with the effect of payment of interest as such or a part payment of principal. The first case in which the effect of Sub-section (2) was considered was Ramcharan Chakrabarti V/s. Nimai Mandal (1921) 35 C.L.J. 58. The facts in that case were shortly these. A preliminary mortgage decree was passed on the 6 April, 1910 and the mortgagor was allowed six months in which to redeem. In 1912 the mortgagor agreed to transfer the equity of redemption to the mortgagees in satisfaction of what was due to them under the mortgage decree, and in pursuance of the agreement the mortgagees went into possession, but they never received a valid conveyance. On the 1 April, 1917, the mortgagor transferred the property to the fifth defendant, who dispossessed the mortgagees. On the 2nd October, 1917, the mortgagees applied for a final decree for sale, but the objection was taken that the application was time-barred. The Court which was composed of Asutosh Mukherjee and Panton, JJ., held that it was not time-barred. The Court said that Section 20 might well be construed to apply whenever mortgaged property is in the possession of the mortgagee. Where a mortgagee has obtained possession under an invalid agreement for sale he may be called upon to account for the rents and profits as if he were a mortgagee in possession. The Court also observed that a litigant cannot be permitted to take up inconsistent positions to the detriment of his opponent. If he does not regard the sale as being valid he must accept his opponent as the mortgagee, in which case Section 20 applies.