THAKUN CHOWDHURY Vs. MANRUP MAHTON

JUDGEMENT

(1.) This is an appeal on be-half of the second party defendant in a suit for recovery of possession of immoveable property. The plaintiffs claim under an usufructuary mortgage, executed in their favour by the admitted proprietor, the predecessor of the first party defendant, on the 29th March 1892. Their case is that they were entitled to possession of the premises under the terms of the mortgage contract that possession was delivered to them but that in 1906 the mortgagor unlawfully deprived them of possession. The plaintiffs lodged a complaint in the Criminal Court, which was dismissed on the ground that they had failed to prove their possession. This order was made on the 29th May 1906. The present action was commenced on the 13th August 1909. The second party defendant, who claims to be purchaser from the first party defendant under a conveyance, dated the 18th January 1908, impugned the genuineness and validity of the mortgage set up by the plaintiffs. The Courts below have found in favour of the plaintiffs and decreed the suit. That decree has been assailed before us on two grounds, namely, first, that the suit is barred by limitation; and, secondly, that the plaintiffs are not entitled to recover possession as against the second party defendant, who has in good faith purchased the property from the mortgagor. In ours, opinion, there is no substance in either of these contentions.

(2.) In support of the first ground, reliance has been placed upon Article 47 of the first Schedule of the Indian Limitation Act of 1908 which provides that a suit by a person, bound by an order respecting possession of immoveable property made under the Code of Criminal Procedure of 1898, must be commenced within three years from the date of the final order in the case. This Article is clearly inapplicable because there was no order respecting the possession of immoveable property made under the Code of Criminal Procedure, although the complaint of the plaintiffs was dismissed, as they failed to prove their possession. Article 47 was plainly never intended to apply to a case of this description.

(3.) In so far as the second ground is concerned, it has been argued that the sole remedy of the plaintiffs is by a suit against the mortgagor personally for recovery of the mortgage money under Section 68 Clause (c) of the Transfer of Property Act; and that the mortgagees are not entitled to recover possession of the property from the assignee of the mortgagor. In support of this view, reliance has been placed upon the case of In re Errington (1894) 1 Q.B. 11 : 10 R. 91 : 69 L.T. 766. That case, however, is clearly distinguishable; it is an authority for the elementary principle that the assignee of the equity of redemption is not under any personal liability to the mortgagee to pay interest on the mortgage money. In the case before us, the assignee holds the property subject to the mortgage, and as, under the mortgage contract, the mortgagees were entitled to possession of the premises, they can recover possession not only as against the mortgagor but also as against his assignee. It has been finally contended that the remedy provided by Section 68, Clause (c), of the Transfer of Property Act, is exclusive, so that the mortgagees, when deprived of the mortgaged premises, are not entitled to recover possession. This position is clearly untenable; when a usufructuary mortgagee has been unlawfully deprived of the mortgaged property, he is at liberty either to bring a suit for recovery of the mortgage money or to sue the mortgagor or his representative for possession of the property; he may have recourse to either remedy at his choice. If any authority is needed for this proposition, reference may be made to the case of Linga Reddi v. Sama Reu 17 M. 469 : 4 M.L.J. 143.