RAJTILAK NARAYAN SUR Vs. MUFIZUDDI TOPADAR

JUDGEMENT

(1.) This appeal arises out of certain execution proceedings. One Osman Ali and another held a mortgage from one Abdul Sobhan. The appellant before us is the purchaser of the equity of redemption in the mortgaged proparties. The mortgagees obtained a decree nisi on the mortgage on the 11 July 1921, and then a final decrees for sale on the 11 August 1921. They then transferred the decree to one Mofizuddi Tapadar. The latter applied on the 15th November 1924, for execution of the decree. The appellant objected inter alia on the ground of limitation. The decree-holder relied upon a payment by the mortgagor in respect of the principal and interest alleged to have been made in June 1924, an endorsement whereof had been made on the back of the copy of the decree nisi. The Munsif in whose Court the decree was sought to be executed held in favour of the appellant upon his other objections, viz., that the kobala by the mortgagees in favour of Mofizuddi was a benami transaction and that the decree had been satisfied by the payment of the decretal debt by the mortgagor to the mortgagees, and did not go into the question of limitation. On appeal the Subordinate Judge held that the assignment in favour of Mofizuddi was bona fide and for consideration and that the plea of satisfaction was not made out, and further that the execution was not barred by limitation. "The appellant has then preferred this appeal, and his substantial contention relates to the question of limitation.

(2.) The payment upon which the assignee of the decree relies has, upon the finding of the learned Subordinate Judge, been proved. It was a payment made for principal as well as for interest. There can be no question, therefore, that there was payment of interest as such of the decretal debt before the expiration of the period of limitation prescribed for an application for execution. Nor is there any question that the payment was made at a time when the mortgagor was liable to pay the decretal debt. The whole question before us is whether this payment by the mortgagor saves the operation of the statute as against the mortgagor only or also as against the appellant who is the purchaser of the equity of redemption.

(3.) If the question had arisen as between the parties before any decree was passed it could have been treated as being concluded by authority, at least so far as this Court is concerned. In Krishna Chandra Saha V/s. Bhairab Chandra Saha [1905] 32 Cal. 1077, there was an acknowledgment as well as a payment made by a mortgagor; and it was held that as regards the acknowledgment it was made by the person, namely the mortgagor, through whom the purchaser of the equity of redemption derived his title and the language of Section 19 of the Act, covered the case; and as regards the payment it came within the wording of Section 20 and that the action was not barred as against the property in the hands of the purchaser. Maclean, C.J., in this judgment referred to the case of Chinnery V/s. Evans [1864] 11 H.L.C. 115, and observed that the principle deducible from that case was applicable, namely, that a mortgagee cannot by the act of the parties entitled only to the equity of redemption be deprived of his right to resort to any estate comprised in his mortgage so long as that mortgage is legally kept alive.