MOHAMAD YUSUF Vs. NARAYANA PILLAI (DIED)

JUDGEMENT

(1.) The question involved in this second appeal is one of limitation. The facts necessary for its disposal may be briefly stated. The suit property belonged to one Doraisami Pillai who mortgaged it to one Narayanasami Aiyar in 1903. Subsequent to this mortgage, Doraisami Pillai executed another mortgage of the said property and some other property in favour of one Swaminatha Pillai in 1905. In 1906, Narayanasami Aiyar instituted a suit on his mortgage, O.S. No. 265 of 1906 on the file of the District Munsiff's Court of Tiruvarur, without impleading the second mortgagee Swaminatha Pillai, and in execution of the decree obtained thereon, purchased the property in 1908 and took delivery of the same in March, 1909. In 1915 the suit property was sold to the plaintiff's father and it was in the possession of the plaintiff's family till 1928, when the plaintiff was dispossessed in execution of the decree obtained by the fourth defendant. Swaminatha Pillai assigned his mortgage in 1910 to the fourth defendant who filed O.S. No. 33 of 1920 in the Sub-Court of Mayavaram for the realisation of the monies due under the mortgage. He therein impleaded the plaintiff as a party defendant to the suit. A decree for sale was passed therein and it was confirmed by the appellate Court in appeal and the appellate decree (Ex. D) ran thus: The mortgaged property hereunder described be sold subject to the prior mortgage of Ex. 1 on which Narayanasami Aiyar had obtained a decree in O.S. No. 265 of 1906 on the file of the Tiruvarur District Munsiff's Court.

(2.) The fourth defendant applied for execution of the decree which he obtained and brought the suit property to sale subject to the mortgage in favour of Narayanasami Aiyar and purchased the property and obtained delivery of possession in July, 1928. The plaintiff having been dispossessed filed the present suit for recovery of the money due on the mortgage, Ex. A. The main defence is one of limitation. Prima facie, the suit being on the mortgage of 1903, it is certainly barred by limitation. But Mr. Rajah Aiyar contends that the date of dispossession gave him a new cause of action. In support of this he relies on a recent decision of this Court mSambasiva Aiyar V/s. Subramania Pillai (193S) I.L.R. 59 Mad. 312. In that case Ramesam and Stone, JJ., held that where a prior mortgagee institutes a suit on his mortgage without impleading the puisnee mortgagee or a purchaser of a portion of the equity of redemption and the property is sold and purchased either by the prior mortgagee or by a stranger, there are two courses open to the prior mortgagee or the purchaser in execution of the decree: (1) to sue on the mortgage, in which case, the suit has to be brought within twelve years from the time when the mortgage amount becomes due and payable, or (2) to proceed on the cause of action derived from his title as auction-purchaser, in which case, the date of the execution sale or the date of resistance to delivery of possession in pursuance of the sale might furnish the starting point for limitation.

(3.) Madhavan Nair, J., in Gopalan Nair V/s. Moideen Madar would seem to suggest that the starting point for limitation must be computed only from the date of the sale certificate. But it is unnecessary to go into this question because the suit is specifically based on the mortgage and could only be based on the mortgage in view of Ex. D. The action would therefore be barred unless there is an acknowledgment of liability or payment of interest to save limitation. What is relied on is that between 1903 the date of taking delivery of possession by Narayanasami Aiyar in execution of his mortgage decree, up to the date of the dispossession by the fourth defendant, the plaintiff and his predecessor-in-title were in possession of the property and in receipt of rents and profits thereon and therefore, the perception of such rents and profits would save limitation by virtue of Section 20, Clause (2) of the Limitation Act which runs thus: Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section (1).