K VENGANNAN CHETTIAR AND SONS, THROUGH MANAGING PARTNER K V MUTHUKRISHNA CHETTIAR Vs. NRAMASWAMI PILLAI

JUDGEMENT

(1.) The only question in this appeal is one of limitation. On the 20 April, 1933, the plaintiff lent to the first and second defendants a sum of Rs. 2,000 on the security of a sub-mortgage of three separate mortgages, executed by the third, fourth and fifth defendants respectively in favour of the second defendant, i The first of these mortgages was executed by the third defendant on the 22nd July, 1927, to secure a sum of Rs. 3,500, the second on the 5th January, 1923, by the fourth defendant to secure Rs. 750 and the third on the 30 June, 1925, by the fifth defendant to secure Rs. 1,000. On the 29 June, 1937, the plaintiff instituted in the Court of the District Munsiff of Dindigul a suit to recover the amount due to him by the first and second defendants in respect of the sub-mortgage. As he had the right to do, he asked for the sale of the mortgaged property. On the 6 June, 1938, the plaint was returned to him for presentation to the Subordinate Judge. In Vellavan Chettiar V/s. Mahalinga Pallian , this Court had held that when a sub-mortgagee sues for the sale of the properties mortgaged to his mortgagor he must pay a court-Ice based on the amount due on the original mortgage and not merely on the amount due in respect of his sub-mortgage.

(2.) In these circumstances the plaintiff decided to abandon his claim for the sale of the properties mortgaged by the third and fourth defendants. He was content to ask for the sale of the property mortgaged by the fifth defendant and for the sale of the " mortgage right" of the second defendant so far as it concerned the other two properties. By abandoning the claim for the sale of the properties mortgaged by the third and fourth defendants the valuation of the suit became sufficiently low to allow the suit to be instituted in the District Munsiff's Court. Having amended the plaint the plaintiff on the day on which it was returned to him re- presented it to the District Munsiff. By the 6 June, 1938, more than twelve years had elapsed from the date of the mortgage created by the fifth defendant, who then pleaded that the suit so far as he was concerned was barred by the law of limitation. This plea was accepted by the District Munsiff who dismissed the suit so far as the fifth defendant was concerned, but granted a decree against the first and second defendants for the amount due under the sub-mortgage. In the event of the decretal amount not being paid he directed that the sub-mortgage. should be sold. The plaintiff appealed to the Subordinate Judge, who held that the suit was not barred against the fifth defendant. Thereupon the fifth defendant appealed to this Court. His appeal was heard by Chandrasekhara Aiyar, J., who agreed with the District Munsiff and accordingly allowed the appeal. The learned Judge having given the necessary certificate, this appeal has been filed from his judgment under the provisions of Clause 15 of the Letters Patent.

(3.) It was found by the Subordinate Judge that in instituting his suit originally in the District Munsiff's Court, the plaintiff acted in good faith and therefore he was entitled to the benefit of Section 14 of the Limitation Act. Chandrasekhara Aiyar, J., agreed that the plaintiff had acted in good faith but he considered that by the amendment made in the plaint the plaintiff had changed his cause of action. The plaintiff says that there was no change in the cause of action, but only a change in the reliefs asked for and that this has not been appreciated by the learned Judge. We consider that the contention is well founded.