J P REGO Vs. PHILLIP TAURO

JUDGEMENT

(1.) This appeal arises out of a suit on the foot of a mortgage bond (Ex. A), dated 31 May, 1918. The amount borrowed under the bond was Rs. 5,000 and the interest was 8 per cent, per annum. The principal was payable in four instalments on the 31 May of each year beginning with 1919 and ending with 1922. It is also stipulated that on the same day the interest due on that date should be paid. Then there is the further clause: If I fail to pay to you the amount of interest payable annually and also the principal amount according to the vaidas mentioned above and keep in arrears the amount of any one of the instalments the future vaida to pay the principal amount shall become cancelled and I shall be liable to pay to you all the amounts immediately irrespective of future vaidas together with interest at 10 per cent per annum from the date of default of payment of the said instalment on the principal and interest of the instalment amount kept in arrears and also on all the amounts due to you by me in respect of future instalments.

(2.) The mortgagor committed default in the payment of the first instalment on the 31 May, 1919. The mortgagee then filed a suit (O.S. No. 404 of 1919) to recover the said instalment. The plaint is Ex. I. In paragraph 4 of the said plaint it is alleged that the plaintiff waives the benefit of the provision in the bond and reserves his right to sue defendant separately should he commit default in payment of the subsequent instalments. In calculating the amount due to him, he calculated interest on the amount of the instalment from the 1 June, 1919 up to the date of suit at 10 per cent, per annum. That suit was decreed. It was a decree for sale of the mortgaged property or a sufficient part thereof. The present suit was filed on the 21st February, 1923 to recover all the amounts of the remaining instalments, interest being calculated at 8 per cent, up to the date of each of the instalments and at 10 per cent, per annum from the date of default. The defendant raised the question that the suit was barred under Order 2, Rule 2 of the Civil Procedure Code. This is the subject of the first issue. The Subordinate Judge found that the suit was barred except as to a certain item which it is unnecessary to refer to and dismissed the suit so far as the amounts of instalments are concerned. The plaintiff appeals.

(3.) The question whether in such a case the suit is barred under Order 2, Rule 2, Civil Procedure Code, has been argued recently before me and my learned brother, Jackson, J. Our decision is reported in Mukyaprana Bhatta V/s. Kelu Nambiyar . The only difference between that case and the present case is, that that was a case of a mortgage arising out of a chit fund. Otherwise the two cases resemble, and if we follow that case we will be bound to hold that the suit is barred under Order 2, Rule 2, Civil Procedure Code. But Mr. Sitarama Rao, the learned Advocate for the appellant, who also happened to argue the former case brought to our notice certain additional considerations, and the cases bearing upon them, and the appeal has also been elaborately argued by Mr. K. Bhashyam Aiyangar for the respondents.