MANGESHWAR NARAIN RAO Vs. SSHIVA RAO

JUDGEMENT

(1.) Plaintiffs sue to redeem a usufructuary mortgage of 1868 for Es. 1,650. In the mortgage- deed there is a provision that the mortgagor is to take back possession and pay a stipulated rent. In default of payment of this rent, the mortgagee was to recover possession and the mortgagor was to pay a sum equivalent to 12 per cent. on Rs. 1,650 as rent from, the date of the mortgage-deed until the mortgagee got back possession. The mortgagor failed to pay rent as stipulated and the mortgagee obtained a decree in 1873 for possession and for Rs. 200 odd claimed as rent and for future rent. It does not appear that this decree was ever satisfied, and the mortgagee now claims to add the decree amount and subsequent interest to his mortgage money. Under the mortgage-deed the payment to be made by the mortgagor was made a charge on the property and there was an undertaking to pay it back together with the mortgage amount. The question for consideration is whether the mortgagee is entitled to demand the decree amount of 1873 together with subsequent interest before redemption. It is contended for respondent that the amount due became merged in the decree, and that as the decree has now become barred the amount cannot now be claimed. It would appear that under American Law the respondent s contention is correct (Vide Jones on Mortgages Section 936), but the position is not so clear either in English or Indian Law, for it would appear from a passage in 21 Halsbury p. 325 that the original charge would still remain unless the decree became satisfied, and it is questionable whether a decree that has become barrel by limitation is on the same footing as a decree that has been satisfied. It cannot be disputed that a mortgagee is entitled, when accounts are settled at the time of redemption, to put forward claims, for the recovery of which a suit would be barred, and it is unnecessary to cite authority for this proposition, but whether an amount for which the mortgagee has obtained a decree, the execution of which is barred by limitation can be treated on the same footing as a barred debt is questionable, In Hewanchal Singh v. Jawahir Singh (1888) I.L.R. 16 Cal 307. (P.C.), it was held that when a decree had been obtained for interest due on a mortgage the tender of the principal amount alone would not be a proper tender of principal and interest, but the question of whether the mortgagee could demand the decree amount again was not specifically decided, and in that case the decree was still alive. The Judgment of the Judicial Committee is very brief and gives no reasons for the decision. In the present case, we have not to consider whether the decree amount and subsequent interest can be claimed, for it is not claimed on the ground that the amount was decreed, but on the ground that the whole amount can be claimed under the mortgage-deed. On looking into the de?d it appears that the penalty that could be claimed by the mortgagee on default in payment of rent by the mortgagor, was a sum equivalent to 12 per cent interest per annum on the principal amount and although it is called rent it is really interest on the mortgage money, and out of the total decree amount Rs. 198 is really one year s interest on the mortgage money. To allow a claim for this amount with subsequent interest from 1873 to date of redemption would be to allow compound interest for which no provision is made in the mortgage-deed, No doubt the deed provides for interest on arrears of rent but the decree does not really provide for arrears of rent and although it does not enforce the stipulation that interest shall be payable from the date of the deed, but only from date of default, it is impossible to go into that question now, and we can only assume that only one year s interest was due at date of decree. This amount without subsequent interest, can alone be claimed. The balance of Rs. 5-6-0 due under the decree is for road cess, but if the 198 Rs. awarded is treated as interest the mortgagor was under no obligation to pay road cess, which is only payable upon rent. In this view the appellant mortgagee is only entitled to claim Rs. 198 as the amount due to him at date of the decree.

(2.) Treating this Rs. 198 as interest upon the principal which is made a charge upon the property can it be said that the charge upon the property has become merged in the decree ? It is contended for appellant that Order 34 Rule 14 of the Code of Civil Procedure supports the view that the claim can be enforced apart from the decree, but that rule only provides that a decree for money in satisfaction of a claim under a mortgage is no bar to a subsequent suit for sale in enforcement of the mortgage, but it is no authority for saying that the decree amount can also be claimed in the subsequent suit. It is urged then on the other side that to allow the decree amount to be claimed again would be contrary to the principle of Order 2, Rule 2, for by bringing a suit for money the claim to make it a charge upon the property must be deemed to be abandoned, but in order that this argument should succeed it is necessary to show that a suit against the property could have been brought when the claim was made for money alone. In this case it certainly could not have been, and consequently the mortgagee s claim is not contrary to the principle of Order 2, Rule 2. It may, however, be contended that fey obtaining a decree for money, which could be enforced at once the mortgagee abandoned the charge which he could only enforce later, and there is considerable force in this contention. It is the view taken in Imdad Hasan Khan v. Badri Prasad (1898) I.L.R. 20 All. 401 in which case Hewanchal Singh v. Jawahir Singh (1888) I.L.R. 16 Cal. 307 was considered, and I think that it is in this case the correct view for having elected to enforce one remedy and having obtained that relief, the mortgagee cannot now be allowed to abandon the relief first chosen and fall back upon the other when his right to enforce the first has been allowed to be barred by limitation. It is possible that the Allahabad view that even while the decree is alive the other remedy cannot be enforced goes too far but it is unnecessary to consider that now.

(3.) This appeal accordingly fails and is dismissed with costs.