GIRDHARILAL HOUSHILAL GUJRATHI Vs. RANOO RAGHOJI MARATHE

JUDGEMENT

(1.) THIS second appeal arises out of a suit to enforce a mortgage executed by one Mithoo Hari in favour of Chandrabhan Vithoba on 5th March 1921 for a consideration of Rs. 2000 carrying interest at 15 per cent, per annum and in default of payment within the stipulated period, which was two years after the execution of the mortgage deed, at 18 per cent, per annum, the mortgage being a simple one. After the death of Mithoo, his widow Mt. Tani, sold the field to plaintiff 1 and one Sampat for a consideration of Rs. 4300 on 29th May 1923. Rupees 2750 out of this consideration of the sale was to be paid to Chandrabhan the mortgagee of the deed in suit by the vendees in full satisfaction of the mortgage above referred to. The vendees alleged that they paid the amount on 30th May 1923 and got back the mortgage deed from the mortgagee with an endorsement of full satisfaction thereon. By reason of this payment made by them they claim to be subrogated to the rights of the mortgagee under the mortgage dated 5th March 1921.

(2.) AS already stated, the original vendees were plaintiff 1 and one Sampat. The vendees claim to be in possession as vendees from the date of sale till 22nd June 1929 on which date Sampat sold his interest to plaintiff 2. Plaintiff 1 and plaintiff 2 were thenceforward in possession of the field in suit and continued to be in possession thereof as vendees till the year 1930, when defendant 2 and one Sitaram attached the field in execution of a decree obtained against Tani in Civil Suit No. 70 of 1922 on the file of the Sub-Judge, first class, Akola. The plaintiffs being in possession as vendees filed a suit for a declaration that the field was not attachable. That was Civil Suit No. 414 of 1931. The suit, however, was dismissed. They filed an appeal. The District Judge, Akola, held that the, field was attachable, and that the sale in favour of the plaintiffs was void ; but he ordered that the attachment should be subject to such rights as the plaintiffs may have by virtue of the doctrine of subrogation by reason of the payment of the mortgage of Chandrabhan. There was an appeal against this decision. The High Court by its judgment held that the District Judge was not justified in making the declaration in favour of the plaintiffs that the property should be sold subject to their rights under the mortgage by subrogation. The High Court, however, remarked as under: We therefore set aside the declaration with the remark that it may be open to the plaintiffs to enforce their rights, if any, which they acquired as a consequence of having satisfied the mortgage of 1921, by separate action or by an application in the execution proceedings.

(3.) THE mortgage is dated 5th March 1921. The money on this mortgage was payable on 5th March 1923. The present suit was filed on 23rd April 1988, i.e., after 12 years of the accrual of the cause of action on 5th March 1923. If Article 132, Limitation Act, is held to be applicable then the suit is clearly barred by time. The contention of the appellants is that the suit is not barred by time inasmuch as they were in possession of the property in dispute, which is the subject-matter of the mortgage, from the date of the sale in favour of the vendees, viz., 29th May 1923, to the date of their dispossession in May 1937. It is contended on behalf of the vendees that they were claiming to be subrogated to the rights of the mortgagee; being themselves in possession of the property from 1923 to 1937, they had no cause of action to institute a suit for enforcing their rights under the mortgage and therefore the plaintiffs' suit is not barred by time. In the plaint the cause of action for the suit has been stated in para. 9 as under: The cause of action of the plaintiffs accrued on the day on which the plaintiffs ceased to have the possession over the field survey No. 107 in suit that is in the month of May 1937, within the local limits of the jurisdiction of this Court at mouza Kadmapur, taluq Khamgaon, the said mortgaged property being a field.