BARHAMDEO PRASAD Vs. TARA CHAND

JUDGEMENT

(1.) This appeal has arisen in a suit which was brought by the plaintiffs on the 17th November 1900, in the Court of the Subordinate Judge of Monghyr, to enforce payment of principal moneys and interest which were charged upon immovable property by a deed dated the 19th September 1887, by which one Kalu Babu mortgaged to the plaintiffs Mouzah Ghak and other properties. The mortgage money was repayable on the 18th November 1888. By the suit, so far as it concerned the defendants Barhamdeo Prasad and Ram Sumran Prasad, the plaintiffs sought a decree against them for Rs. 12,197-8-3, together with interest, on the ground that they were in possession of a sum of Rs. 12,197-8-3, which had been deposited in the Court of the Subordinate Judge of Monghyr, and was the balance remaining over of the purchase money of Mouzah Chak, after satisfying a decree for sale of that Mouzah of the 8th October 1890, such possession having been obtained by them wrongfully with full knowledge that it was affected with a charge to the plaintiffs under a mortgage of Mouzah Chak. Barhamdeo Prasad, now dead, is represented in this appeal by his brother, Ram Sumran Prasad. The only question in this appeal is whether the suit so far as it related to Barhamdeo Prasad and Ram Sumran Prasad was a suit to enforce payment of money charged upon immovable property within the meaning of Article 132 of the second Schedule of the Indian Limitation Act, 1877, or was a suit to which Article 120 of that Schedule applied.

(2.) The facts, briefly stated, are as follows: On the 21st May 1887, Kalu Babu mortgaged Mouzah Chak and other properties to Barhamdeo Prasad and Ram Sumran Prasad. On the 19th September 1887, Kalu Babu mortgaged Mouzah Chak and other properties to the plaintiffs, and on the 19th July 1889, Kalu Babu further mortgaged Mouzah Chak to Barhamdeo Prasad and Ram Sumran Prasad. On the 8th October 1890, Barhamdeo Prasad obtained decree for sale on their mortgage of the 21st May 1887. To the suit in which that decree was obtained the plaintiffs in this suit were made parties, but they did not appear. In execution of the decree of the 8th October 1890, Mouzah Chak was sold. After satisfying that decree a balance amounting-to Rs. 12,197.8.3 of the moneys which were realised by the sale of Mouzah Chak remained, and that balance was deposited in the Court of the Subordinate Judge of Monghyr. On the 14th January 1891, Barhamdeo Prasad and Ram Sumran Prasad obtained a decree for sale on their mortgage of the 19th July 1889, and in execution of that decree they, on the 22nd April 1892, drew out of Court the balance of Rs. 12,197.8.3 which had been deposited in Court. Barhamdeo Prasad and Ram Sumran Prasad were well aware of the existence of the plaintiffs mortgage and that it had priority to the charge they were seeking to enforce, but they did not make the plaintiffs parties to the suit, nor did they give them notice that under the decree of the 14th January 1891 they were drawing out of Court the balance of Rs. 12,197-8-3.

(3.) On behalf of Barhamdeo Prasad and Ram Sumran Prasad it was contended in the Court of the Subordinate Judge that this suit, so far as it related to the claim of the plaintiffs against them in respect of the Rs. 12,197-8-3, surplus moneys of the sale of Mouzah Chak, was barred by limitation their contention on the point of limitation was that Article 120, and not Article 132, of the second Schedule of the Indian Limitation Act, 1877, applied to that claim. They also raised various other contentions in the Court of the Subordinate Judge to which it is not now necessary to refer. The Subordinate Judge held that the surplus sale-proceeds of Mouzah Chak were part of the mortgage security to which the plaintiffs were entitled under their mortgage, and gave the plaintiffs a decree. From that decree of the Subordinate Judge Ram Barhamdeo Prasad and Ram Sumran Prasad appealed to the High Court at Calcutta. In that appeal two learned Judges, Henderson and Sale, JJ., held that the surplus sale-proceeds of Mouzah Chak were portion of the security to which the plaintiffs were entitled to look for satisfaction of their mortgage, and that they were entitled to follow that mortgage security in the hands of Barhamdeo Parsad and Sumran Prasad. Mr. Justice Henderson also suggested that Barhamdeo Prasad and Sumran Prasad, having obtained possession of the surplus proceeds which had been deposited in Court with the knowledge that they were subject to the claim of the plaintiffs in priority to their own claim, and that they had abstained from giving notice of that suit to the plaintiffs, might be taken to hold the surplus proceeds under an implied trust for the plaintiffs. The High Court, holding that the suit was a suit to enforce a claim for money charged upon immovable property and had been brought within time, dismissed the appeal. From that decree of the High Court this appeal has been brought.