PRADYUMNA KUMAR MULLIAK Vs. KUMAR DINENDRA MULLICK

JUDGEMENT

(1.) On 13 February 1920, two persons, namely Kumar Dinendra Mullick and Kumar Ganendra Mullick, executed, in favour of Nandalal Roy and Pullin Krishna Roy, a mortgage of certain house property situated in the town of Calcutta, to secure the re-payment of a loan of Rs. 300,000 with interest thereon at 9 per cent. per annum. The mortgagors did not redeem the mortgage within the stipulated period of one year with the result, that on 26 July 1921, the mortgagees brought an action to recover the money due to them by a sale of the mortgaged property. They obtained on 12 April 1922, a preliminary decree for sale, which was followed by a final decree on 16 April 1923. In pursuance of the final decree, the mortgaged property was directed to be sold by public auction on 5 January 1924; but the sale was postponed for one year in accordance with an arrangement arrived at between the parties for the satisfaction of the claim of the decree-holders. One Pradyumna Kumar Mullick, who is the plaintiff in the present action, agreed to discharge the entire debt due to the decree-holders and also to advance Rs. 21,923 to the judgment-debtors on terms which will be discussed presently. He paid on 5 January 1924, Rs. 100,000 to the decree-holders, and promised to pay on 27 June 1924, Rs. 287,411-5-6, which was the balance of the money due to them under the final decree for sale.

(2.) The plaintiff duly paid the sum to the decree-holders, and also the additional amount as a loan to the judgment-debtors. Thereupon, two deeds were executed on 27 June 1924, in his favour. One of them was a deed of assignment by the decree-holders of their rights under the preliminary and the final decrees for sale with "the full benefit of all powers, rights, remedies and securities" conferred upon them by the mortgage deed and the aforesaid decrees. The second document, which was executed by the debtors, was a mortgage deed, by which they covenanted to pay, on 5 January 1925, to the plaintiff two sums of money, (1) Rs. 387,411- 5-6, which was paid by him to satisfy the decree; and (2) Rs. 21,923 advanced by him to the mortgagors. The mortgage money was to carry interest at 11 per cent. per annum, and the re-payment thereof was secured, not only by the property specified in the first deed of mortgage, but also by two other houses conveyed by the second deed. These provisions do not require any comment, as similar covenants are found in almost every deed of mortgage. But a clause was inserted in the deed, which is certainly of a novel character; and it is this clause which has misled the High Court. In the event of the mortgagors' failure to redeem the property within the stipulated period, the clause in question empowered the mortgagee to include the newly mortgaged properties within the order for sale contained in and ordered by the said decrees, as if the last mentioned properties have been comprised and included in the said indenture of mortgage of 13 February 1920, between the mortgagors of the one part and the said Nandalal Roy and Pulin Krishna Boy of the other part, without having to institute a fresh suit on the footing of these presents, and also to include the amounts due and owing upon these presents for the time being as having been included in the said in part recited indenture of 13 February 1920, and in the said decrees.

(3.) On 25 August 1924, the new mortgagee was substituted for the decree-holders in the final decree for sale obtained by them on the mortgage of 1920; and the houses which were mortgaged by that deed, were sold, and the price realized by the sale was paid to him. It appears that the properties conveyed by the deed of 1924, were sold privately without invoking the clause mentioned above. After giving credit for the amounts realized by the judicial and private sales, the mortgagee was still entitled to a large sum of money, which, as calculated on the basis of the covenants contained in the deed of 1924, amounted to Rs. 267,513-14-7. It was for the recovery of this sum that he made an application in December 1931, under O. 34, R. 6, Civil P. C., 1908, asking the Court to make a personal decree for the recovery of that sum from the mortgagors. He based his claim on the clause in the deed of 1924 allowing him to treat the money due to him on that instrument "as having been included" in the mortgage deed of 1920 and "in the said decrees". The application was, however, dismissed on the ground that, as it was made after the expiry of three years from the date of the last judicial sale, it was barred by limitation.