KHAN SAHAI Vs. MAHURMUN

JUDGEMENT

(1.) THIS was a suit for the recovery of money due on a mortgage purporting to have been effected by Chhunni, Sitaram, Nakrarn and Bhagirath, sons of Harimal, in favour of Sumer, on the 8 January 1879. The mortgage-deed provided for the payment of the mortgage-money within 15 years and it further contained a provision that if the money was not so paid the mortgage will be deemed to operate as a sale. The mortgagor had covenanted to deliver possession over the mortgaged property, but the finding of both the Court below is that for some reason or other the mortgagee was not given possession.

(2.) THE defendants first party are the descendants of the original mortgagor, THEir main plea was that they had been in adverse possession of the disputed property and that the claim was barred by limitation. Two of the defendants further suggested that the sons of the original mortgagee had purchased the mortgaged property after getting the same sold by auction in satisfaction of some other debt, but did not take any steps to take possession of the mortgaged property and that their title as purchasers had lapsed by reason of limitation, while the mortgage itself had become extinct. THE plaintiffs claim to be the purchasers of the mortgagee rights from some of the descendants or successors-in-interest of the original mortgagee. THE trial Court found that the contesting defendants had failed to establish that the mortgage had been extinguished by a purchase of the mortgaged property by the sons of the mortgagee, It, however, proceeded to find that as the mortgagee did not obtain possession over the mortgaged property, the claim was barred by limitation. THE lower appellate Court upheld that finding. As held by their Lordships of the Privy Council in Wasudeo Mudaliar V/s. Srinivasa Pillai (1907) 30 Mad 426, Art. 147 is only applicable to a suit on an English mortgage, that is to say a suit in which the plaintiff is entitled to claim either foreclosure or sale. THE mortgage in question does not provide for sale. THE suit was not for foreclosure or sale, and Order 34, Rule 4(2) of the Civil P. C, has, therefore, no application. THE cause of action arose in 1894. THE mortgagee or his heirs never got possession of the mortgaged property. THE claim was, therefore, clearly barred by time. THE appeal is dismissed with costs including fees in this Court on the higher scale.