R APPAYYA Vs. AVENKATRAMAYYA

JUDGEMENT

(1.) In this case, the competition is between the plaintiff, who was the puisne mortgagee, who brought a suit on his own mortgage without making the prior mortgagee a party and purchased the property in Court auction and the prior mortgagee who brought a suit without making the puisne mortgagee party and purchased the property himself. Neither-mortgagee made the other mortgagee a party to his suit. The puisne mortgagee now claims possession of the property under his purchase and in the alternative,, relying on his mortgage, asks to be permitted to redeem the prior mortgagee or to bring the property to sale subject to that mortgage.

(2.) When two mortgagees bring suits like this each suing without making the other mortgagee a party, it is clear on the authorities that the rights of either mortgagee are not affected by the suit brought, without making him a party. The result is the puisne mortgagee would have been entitled to redeem the prior mortgagee, in-this case, if no difficulty of limitation arose. But unfortunately his right to enforce his mortgage has become barred by limitation. His mortgage was in 1893. The suit was brought in the year 1918 and is clearly beyond time, under Art. 132 of the Limitation Act. He could not enforce his claim under his mortgage, either to redeem the prior mortgage, or sell the property, as he is barred by limitation. An exactly similar case arose in Calcutta and is reported in Nidhiram Banopadhya V/s. Sarbessur Biswas (1910) 14 C.W.N. 439. There their Lordships held that the second mortgagee, having allowed the period of limitation to expire, was not entitled to enforce his mortgage by redeeming or selling and that a purchase by him, in a suit brought by him, against a mortgagor, without making the first mortgagee a party did not give him a fresh starting point for limitation; he can only rely upon his original mortgage itself and being unable to do so on account of limitation, his suit must be dismissed. In this view, which I respectfully follow, it is not necessary to consider any other points arising in this case. The suit was rightly dismissed.

(3.) The Second Appeal fails and is dismissed with costs.