NARHAR RAMCHANDRA GUDE Vs. GULLU DHONDBA KASAR

JUDGEMENT

(1.) 1. The facts of the case are sufficiently set out by me in my previous judgment dated 28th November 1930 reported as Narhar v. Gullu, A. I. R. 1931 Nag. 110 and need not therefore be recapitulated. The review of that judgment was ordered only for deciding issue 5 framed in Suit No. 152 of 1924. That issue is expressed in these terms: If the defendant's claim to pre-emption fails can he call upon the plaintiff to redeem his mortgage dated 28th November 1907

(2.) IN a maze of other pleas raised on both sides in this case and the counter suit the decision on this issue was not given at all either by the lower appellate Court or this Court and though the Court of first instance purported to give a decision thereon, it is conceded on both sides, that none was really given. The pleadings of the parties on this issue are contained in para 6 of the plaintiff Narhar's written statement in Suit No. 152 of 1924 and in the oral pleadings recorded by the Court on both sides in the counter suit, Suit No. 5 of 1926, on 21st September 1927. According to the case of Narhar he could not be compelled to redeem Gullu's prior mortgage of 1907 because Gullu's remedy to enforce that mortgage has long become barred by time, the cause of action for it having admittedly arisen on 22nd November 1910. It is next contended on behalf of Narhar that since he was not a party to the preliminary decree for foreclosure which was obtained by Gullu in Suit No. 379 of 1911 he is not bound by that decree, the more so as it has never been made final. It is further contended on behalf of Narhar that although Gullu was joined as a party defendant to his own suit for foreclosure on his subsequent mortgage (Suit No. 127 of 1913) he did not then put forward his right to be redeemed but got himself discharged by claiming a paramount title and that therefore Section 11, Civil P. C., precludes Gullu from claiming to be redeemed in the present suit. On behalf of Gullu it is urged that since he is in possession of the mortgaged property and Narhar wants to oust him therefrom he can, in law, resist the claim for possession on the basis of his prior mortgage although the right of suit thereon may have become barred at the date of the present suit and Ram Sarup v. Ram Lal AIR 1922 All 394 and Premsukhdas Bhikamchand v. Peerkhan AIR 1926 Nag 21 are relied on in support of the contention. The Allahabad case is undoubtedly on all fours with the present one. In that case a subsequent mortgagee had sued to enforce his two mortgages against a prior mortgagee who was in possession of the mortgaged property by reason of his having purchased it in execution of a simple money decree as is the case here. The prior mortgagee claimed to be redeemed although his right to enforce the prior mortgage had become barred by time on the date the plea was raised. It was nevertheless held that the plea of the prior mortgagee was tenable and the subsequent mortgagee was granted a decree subject to his redeeming the prior mortgage.

(3.) AGAIN the same point, though in another form, arose for decision in Vithoba v. Gyaniram (1909) 5 NLR 66 where it was hold that the plaintiff co-purchaser who had not paid his share of the purchase money to the defendants co-purchasers, who were in possession of the property, was not entitled to recover possession of his share of the property without paying his quota of the purchase-money though the defendants' right to enforce contribution had become time-barred at the date of the suit. In Naraindas v. Nenu AIR 1929 Nag 145 at (pp. 78-79 of 25 N. L. R.) a Bench of this Court in explaining the provisions of Section 28, Lim. Act made the following very weighty observations: Unless a law of limitation operates as well as a law of extinctive prescription, omission to sue cannot discharge the debtor. Limitation which merely bars the remedy is never spoken of in works of jurisprudence as a mode of discharging an obligation. Halland, enumerating the modes of termination of rights in personam, does not refer to limitation as one of them. (See Halland's "Jurisprudence," Edn. 10, pp. 306 to 311). Anson in his work on "Contracts" treating of the "discharge of contracts" says at common law lapse of time does not affect contractual rights. Such rights are of a permanent and indestructible character unless either from the nature of the contract, or from its terms, it be limited in point of duration. But though the rights possess this permanent character, the remedies arising from their violation are, by various statutory provisions, withdrawn after a certain lapse of time. The remedies are barred though the rights are not extinguished: See Anson's "Law of Contract," Edn. 11, p. 343.