RAMDIN Vs. KALKA PERSHAD

JUDGEMENT

(1.) THIS is a suit instituted by the mortgagee against the mortgagor. He seeks to enforce a mortgage not under seal dated the 25th of January, 1870, by which certain property was pledged to him for a mortgage debt; he alleges that the Defendant has failed to pay both principal and interest, and prays that the principal and interest may be enforced against the mortgaged property, and also by rendering the person of the Defendant and his other property liable. Therefore, although it is a mortgage suit, there are two distinct remedies sought, one against the mortgaged property, and the other by rendering the other property and the person of the Defendant liable. The Defendant does not dispute the mortgage. He raises no question as to the right of the Plaintiff to have the mortgaged property sold, but he says that the remedy sought against him personally, and against his other property, is barred by the operation of the Limitation Act of 1871.

(2.) THEIR Lordships turn then to see what the mortgage transaction was. It is very plain and very simple. The instrument recites the mortgage of certain property for Rs. 1300 to the present Plaintiff, that the interest should be at the rate of one per cent. per mensem, and the principal and interest to be repaid at the end of Jeth Sam bat 1927. The instrument then says:--"I have received the mortgage money in full. I therefore covenant that if I fail to pay the principal with interest on the promised date the mortgagees will be at liberty to recover through the Court their whole money in a lump sum from me or the mortgaged property." The mortgagor thus gives the mortgagee a pledge of certain fixed immoveable property, and also gives as a further security his personal bond or covenant. A period of nearly ten years elapsed from the time at which the mortgage money with interest became payable before the suit was instituted. The question submitted for their Lordships' consideration is, whether the lesser period of limitation, three or six years as the case may be, has barred the personal remedy against the mortgagee, even though the mortgage remains in full force, as against the mortgaged property.

(3.) LOOKING at the previous language with reference to personal suits, and at the language of Article 132, their Lordships think great inconveniences and inconsistencies would arise if they did not read the latter as having reference only to suits for money charged on immoveable property to raise it out of that property. That seems to their Lordships what the Legislature intended, and they are therefore of opinion that the decision of the High Court was right.