SAHIB DAYAL Vs. MEHARBAN

JUDGEMENT

(1.) Second Appeal No. 801 and Second Appeal No. 802 of 1920 are plaintiff's appeals arising out of a suit for sale, on the basis of a mortgage-deed, dated the 16 of November, 1905, executed by the father of the present defendants in favour of the plaintiff. The defendants did not put in an appearance in the court of first instance and no written statement was filed on their behalf. The learned Subordinate Judge, relying on a clause in the mortgage-deed, which entitled the mortgagee to sue for the whole amount of principal and interest, on default of payment of annual interest, held that the claim to enforce the charge was barred by time under Art. 132 of the Limitation Act, but he was, however, of opinion that the personal remedy was not barred. He, accordingly, granted the plaintiff a simple money-decree.

(2.) Both parties appealed to the learned District Judge who, holding that the personal remedy also was barred, dismissed the whole suit. The plaintiff appealed to this Court from the lower appellate court's decrees and his appeals came up for hearing before a Bench of this Court which, in view of some apparent conflict of opinion, has referred these cases to a Full Bench. There are only two points which arise for our determination: (1) Whether the plaintiff's claim to enforce the charge by sale of the mortgaged property is barred by time. (2) Whether, in any case, he is entitled to a simple money-decree.

(3.) As some argument has turned on the actual wording of the document in suit, we think it desirable to quote the operative portion of it in full. It is as follows: I hereby covenant and give in writing that I shall pay the money aforesaid with interest at the rate of 8 annas per cent., per mensem, within a period of twelve years and shall pay interest from year to year. In case of non-payment of interest from year to year, the creditor has the option to add the interest to the principal and to charge interest thereon at the aforesaid rate or to recover through court principal and interest from me and hypothecated property and also from my other movable or immovable property and from my person within the stipulated period. The period fixed shall not bar the claim. In case of non-payment within the stipulated period, the creditor shall have the power to recover the money, principal and interest together with compound interest, from me, mortgaged property or other movable or immovable property of mine. If I am not able to pay the money within the stipulated period and with the consent of the creditor the money remains unpaid, the interest and compound interest at the aforesaid rate shall continue to run at the stipulated rate till the date of realization.