KAMAKSHI AMMAL Vs. ANANTHANARAYANA SWAMI PILLAI

JUDGEMENT

(1.) This appeal was heard by Chandrasekhara Aiyar, J., in the first instance and was referred by the learned Judge to a Division Bench as an important question of law was raised and the point is not covered by any direct authority.

(2.) One Pal Kangani, the predecessor in interest of respondents 1 to 3 in this appeal obtained a preliminary decree for sale on a deed of simple mortgage executed by one Natesa Goundan, the appellant's deceased husband on the 11 October, 1924. The decree was passed on the 14 February, 1933, by the District Munsiff of Turaiyur in O.S. No. 5 of 1933. The final decree tallowed on the 9 January, 1934. During the pendency of that suit Natesa Goundan's sister, Mookayi, brought a suit against the appellant as the widow and representative of Natesa Goundan for a declaration of her title to certain properties including the properties mortgaged by Natesa and for other consequential relief. The mortgagee was impleaded as the second defendant in that suit and one of the issues was "whether the mortgage in favour of the second defendant by Natesa Goundan is binding on the plaintiff" (issue 5). The trial Court passed a decree declaring that the suit properties belonged to the second plaintiff (Mookayi's legal representative) and declaring also that " the mortgage deed executed by Natesa Goundan in favour of the second defendant in respect of items 1 and 2 of the plaint Schedule and the mortgage decree obtained by the 2nd defendant on his mortgage are not binding on him." From this decree which imperilled his security the mortgagee preferred, after an unsuccessful appeal to the first appellate Court, a second appeal to this Court which was also dismissed on the 6 August, 1941. The mortgage decree obtained by him having thus been declared to be invalid and inoperative, he made the application which has given rise to this appeal on the 25 August of the same year praying that a personal decree for the amount declared due under the preliminary decree with subsequent interest be passed against the assets of the deceased mortgagor in the hands of the appellant. In the affidavit filed in support of the application he referred to the proceedings in Mookayi's suit culminating in the dismissal of his second appeal to this Court, and stated that " as after the said decision the plaintiff and the defendants (mortgagor's representatives) have lost their rights in the mortgaged properties it is not possible to bring to sale in execution the properties relating to the decree in this suit." The application was opposed by the appellant herein on the ground that it was barred by limitation under Art. 181 of the Limitation Act which prescribes for applications for which no period of limitation is provided elsewhere in the Act a period of three years commencing from the time " when the right to apply accrues." The appellant contended that the respondent's right to apply for a personal decree accrued as soon as the trial Court decided in Mookayi's suit that the mortgagor had no title to the mortgaged properties, that is, on the 20 July, 1936, and the present application made more than three years alter that date was barred. The District Munsiff accepted this contention and dismissed the application. On appeal by the present respondents the lower appellate Court held that the mortgagee's right to apply for a personal decree accrued only when is was ifnally decided that the mortgagor had no title to the property which he had mortgaged, that is to say, when this Court dismissed the mortgagee's second appeal on the 6 August, 1941, and that the present application filed a few days thereafter was well within time. Chandrasekhara Aiyar, J., in his referring order thought that this was a " sensible view," but doubted whether it was legally correct, having regard to the " analogous decisions " cited before him. We have come to the conclusion for reasons which we will presently indicate, that the view is not only sensible but also correct.

(3.) Mr. M.S. Vaidyanatha Aiyar urged on behalf of the appellant that the reasoning of the Subordinate Judge was erroneous and unsound and the conclusion based thereon was unsustainable. The learned Judge said: If instead of straightaway filing a petition under Order 34, Rule 6, after the decision of the High Court in S.A. No. 1024 of 1938, the decree-holder had gone through, the formality of a sale of these properties which he would be legitimately entitled to do--for the mortgagor judgment-debtor would not be entitled to prevent a sale of the properties in execution of the decree--the mortgagee decree-holder would be entitled to file an application for the passing of a personal decree within three years from the date of that sale in execution of the said properties. In these circumstances I do not think that it could be said that the appellant gave up his rights under the decree until the final adjudication of the mortgagor's title to the hypothecated property which took place only on the High Court dismissing the second appeal. This reasoning is no doubt open to criticism. In the face of the decision in Mookayi's suit to which the mortgagee was a party it would not be possible for him to bring the property to sale in execution of the mortgage decree, for that would be asking the Court to be a party to a mockery and fraud. As pointed out in Periyasami Kone V/s. Muthiah Chettiar (1913) I.L.R. 38 Mad. 677 "it is an elementary principle of law that the Court will not do a vain thing, nor will it compel a man to do a fruitless thing." Nor could there be any question of the mortgagee " giving up his rights" after it was finally decided that the mortgagor had no title to the property mortgaged. It does not, however, follow that the conclusion of the learned judge is unsustainable.