HALSNAD MADAPPAYA Vs. PMAHABALA RAO

JUDGEMENT

(1.) On 23 February 1916 defendant 1 executed the mortgage deed, Ex. A, in favour of the plaintiff for Rupees 20,000. In this document were recitals by which the plaintiff held himself responsible for any loss that might accrue to defendant 1 on the ground of his not paying off certain debts out of the consideration. On the other hand, defendant 1 held himself liable on the security of the same property for any excess amount that might be spent by the plaintiff in preserving his mortgage rights. In Ex. A there was a definite recital that there were no prior mortgages. In fact however there was a mortgage evidenced by Ex. M dated 15 January 1900 for Rs. 400 on items 1 to 5 of the same property. In 1916 the mortgagee of that prior mortgage brought O.S. No. 180 of 1916, to which both the present plaintiff and defendant 1 were parties. During the course of the suit, on 8 June 1917, defendant 2, by Ex. J., purchased the equity of redemption. The property was brought to sale and both the plaintiff and defendant 2 filed petitions, Exs. C and I, to set aside the sale on payment of the decree amount. The plaintiff had filed the earlier petition and it was the plaintiff who was allowed to pay off the decree amount.

(2.) The plaintiff, relying on the recital in Ex. A that on the same security defendant 1 would be liable for any excess amount spent by the plaintiff in preserving the mortgaged property, has brought this suit for sale of the whole of the property subject to his own mortgage. The suit is opposed by defendant 2, who purchased the property in 1917. The District Munsif of Kundapur held that the recital in Ex. A relied on by the plaintiff was not intended to have any reference to prior mortgages and so dismissed the suit. In appeal the District Judge of South Kanara, while upholding the District Munsif's finding with respect to the interpretation of the relevant clause in Ex. A, held that the plaintiff is entitled by the principle of subrogation enunciated in Section 74 of the old T.P. Act to maintain the suit against such items of the property as were mortgaged by Ex. M and that the right of subrogation thus acquired was one that placed him in the position of a mortgagee under Ex. M. As this document was executed in 1900, this suit is prima facie out of time. The District Judge however held that there was an acknowledgment of the mortgage debt by Ex. N on 29 May 1914 and again by Ex. I on 6th October 1918. He therefore gave a decree to the plaintiff for the mortgage amount due under Ex. M from the date of the mortgage.

(3.) In appeal it is contended, firstly, that as the plaintiff did not show in his plaint how the suit was not barred by limitation, he ought not to have been given a decree, and secondly, that Ex. I was not an acknowledgment of the mortgage debt and that the suit was not therefore in time it is no doubt true, as a general principle, that a plaintiff must show in his plaint how his suit is in time; for the question whether the suit is in time must, if denied, be one of the issues in the case, and if the plaintiff does not explain how his suit is in time, it is impossible for the defendant to meet his case. The District Judge held, and I think he is correct, that the plaintiff had set out in his plaint all the facts from which one could imply subrogation; and it also appears that the documents relied on to save time had necessarily to be filed in the suit and that in this particular case the defendant was in no way prejudiced. When the question was argued in the first Appellate Court, defendant 2 does not seem to have raised any objection to this omission; and I find no objection raised in the memorandum of cross-objections. I am not therefore prepared to interfere with the decree of the lower Appellate Court on this account.