BALA BUX Vs. NATH MULL

JUDGEMENT

(1.) The respondents who held a mortgage decree applied under Order 34, Rule 6, Civil P.C., and their application having been granted there was an unsuccessful appeal to the District Judge by the mortgagors who now prefer a second appeal to this Court. The bond was executed by the appellant No. 1 and his two brothers, respondents 5 and 6, on 25 November 1916 in favour of the family of the plaintiff. It is a rehan with a personal covenant to repay on 13 December 1917, and in addition, there is a clause regarding dispossession which gives the mortgagees the right to realize from the mortgaged property, from the persons of the mortgagors and from their other properties moveable and immoveable if they are dispossessed from the whole or any portion of the rehan property.

(2.) The suit was instituted on 26 June 1925, the cause of action being dispossession on the 24 March previous. A mortgage decree was passed for Rs. 4,973-10-0 and Rs. 1,200 having been realized on 5 April 1928, by sale of the mortgaged property, the mortgagees on 5 February 1919, applied for a personal decree for the balance under Order 34, Rule 6. The main question for decision in the Courts below was one of limitation and that was decided in favour of the mortgagees. In second appeal it is urged first, that no decree on the personal covenant could be passed beyond the period of six years from the due date, which is 13 December, 1917; secondly, that in any case limitation of three years applies from the date of dispossession, 24 March 1925, in respect of the application under Order 34, Rule 6; and thirdly, that the appellant 2 not being an executant of the bond, but merely the son of defendant 1, the decree against him is wrong so far as it is a personal decree, as he can only be made liable to the extent of the joint family property.

(3.) As regards the last point it is conceded to be correct. The first point is very feebly argued. Indeed, it clearly does not arise at all because the suit is brought, not on the failure to pay on the due date as the cause of action, but on the dispossession which under the terms of the bond gives a second and further cause of action. The substantial point is the second point and a good many cases have been cited before us. It is clear, however that the point is quite concluded by the Full Bench decision of the Madras High Court in Ratnasabhapathy Chettiar v. Devasigamony Pillai, 1929 Mad 53, in which it is laid down after consideration in particular of the decisions of their Lordships of the Judicial Committee in Tricomdas Cooverji Bhoja V/s. Gopinath Jiu Thakur, 1916 PC 182, which was applied, and in Ganesh Lal V/s. Khetra Mohan, 1926 PC 56 and Ram Din V/s. Kalka Prasad (1884) 7 All 502, which were explained and distinguished, that the article of the Limitation Act, applicable to a claim based on the personal covenant to recover the balance due to the mortgagee after the sale of the mortgaged property is Art. 116 which provides a period of six years from the due date and not Art. 66 or Art. 67.