VADAVATTE GOPALAN NAIR Vs. MOIDEEN MADAR ROWTHEN

JUDGEMENT

(1.) Plaintiff is the appellant. This second appeal raises a pure-question of law, and that question is whether the suit is barred by limitation under Art. 132, Lim. Act. The facts are these. The owners of the suit properties granted two mortgages (Exs. F and G) over the suit properties in favour of one Eaman Nair. They subsequently granted a usufructuary mortgage of the same properties in favour of, one Raghunatha Sastri for Rs. 475 (see Ex. 11), authorizing him to pay off the prior mortgages in favour of Raman Nair and reduce the properties into possession. He paid in cash Rs. 125 to the mortgagors but he never paid off the prior mortgages. Raman Nair, the original mortgagee, assigned his rights under the two mortgages in favour of one Bada. Bivi under Ex. 13. The original mortgagors also assigned their mortgagor's rights in the properties to the said Bada Bivi. Thus Raman Nair's mortgages have become extinguished and the only outstanding mortgage on the properties was the one in favour of Raghunatha Sastri, and Bada Bivi became the owner of the properties. Later on Bada Bivi granted a mortgage in respect of these-and some other properties to one Chidam- bara Iyer and took back the properties on lease. While matters stood thus,, Raghunatha Sastri's son Sivarama Sastri instituted O.S. No. 512 of 1914 to recover the sum of Rs. 125 which had been advanced under Ex. 11, by sale of the mortgaged properties. The subsequent mortgagee under Bada Bivi,. Chidambara Ayyar, was not impleaded as a party to this suit. Subsequently Chidambara Ayyar's son, defendant 9 in the present case, filed O.S. No. 68 of 1916, for recovery of arrears of rent due-to him under the lease of the properties which had been mortgaged to his. father by Bada Bivi by sale of the properties.

(2.) Defendant 9 obtained a decree in that suit and in execution of that decree the plaint properties were brought to sale and purchased by defendant 10 and he subsequently assigned the sale rights, to the present defendant 1 in the suit. In that suit the prior mortgagee Raghunatha Sastri or his son Sivarama Sastri has not been impleaded as a party. Later on, the mortgaged properties were Bought to sale in execution of the decree in O.S. No. 512 of 1914 which had been obtained by Sivarama Sastri on Ex. 11 &8d in that sale the plaintiff in the present suit became the purchaser under He sale certificate Ex. A dated 6 November, 1919. When the plaintiff applied for delivery of possession of the properties in execution on the sale certificate he was successfully resisted by defendant 1. The suit out of which this second appeal arises was then instituted by the plaintiff on 27 June 1921 for the enforcement of his rights under the mortgage. As originally framed the suit was only for recovery of possession of the properties with mesne profits. As the result of Second Appeal No. 558 of 1925 the plaint was allowed to be amended by adding the prayer for sale of the properties on the strength of the mortgage Ex. 11. The main contention of the defendant is that the plaintiff's suit is barred by limitation. The first Court held in favour of the plaintiff. The appellate Court held against him and as a result the plaintiff's suit was dismissed.

(3.) In this second appeal the short question for decision is whether the plaintiff's suit is barred by limitation. The plaintiff is in law the holder of the rights of the first mortgagee over the suit properties. To the suit instituted by the first mortgagee, in execution of the decree of which the properties were sold, the second mortgagee was not a party. It has been found in the previous proceedings that at the time of his suit the first mortgagee was not aware of the second mortgage. The second or the subsequent mortgagee is now represented by defendant 1. To the suit by the second mortgagee the first mortgagee was not a party. Though the second mortgagee's suit was instituted later than the suit by the first mortgagee, the purchase of the properties in execution of the decree passed in the second mortgagee's suit was earlier in date than the purchase of the properties by the plaintiff in execution of the decree in the first mortgagee's suit. The earlier mortgage Ex. 9 is dated 1899 and the purchase by the plaintiff of the properties under Ex. A was on 6 November 1919. The plaintiff's suit was instituted on 27 June 1921. Under Art. 132, Lim. Act, the-period of limitation to enforce payment of money charged upon immovable property is 12 years, time being calculated from the date when the money sued for becomes due. If limitation is calculated in the present case from the date of the mortgage, clearly the suit is barred by limitation as held by the lower Court-But if the period is calculated from the date of purchase of the properties by the plaintiff, then the suit is not barred.