K N ADIKESAVALU NAIDU Vs. MANNI MUNUSWAMI CHETTY

JUDGEMENT

(1.) The respondent in this appeal filed the suit to enforce a mortgage, dated 9 October, 1918, executed in his favour by defendants 1 and 2 in the action. The appellant was impleaded as the third defendant because he had a second mortgage dated 20 November, 1918, in his favour. The present suit for sale was filed on the 24 December, 1942. The appellant had filed a suit of his own on his mortgage, O.S. No. 75 of 1930 on the file of the District Munsiff's Court, Trivellore, on 6 January, 1930, and obtained a preliminary decree. On 7 October, 1930, defendants 1 and 2 the mortgagors, sold a portion of the hypotheca to the present plaintiff for a sum of Rs. 300 in satisfaction of the mortgage amount due to him under his mortgage, dated 9 October, 1918. Possession of the properties sold was delivered over to the plaintiff who continued to enjoy the rents and profits thereof down to 1942. The appellant brought the properties to sale in execution of his own mortgage decree and purchased the same on 19 February, 1934. After some proceedings he ultimately succeeded in getting possession of the properties in 1943 in pursuance of the ultimate decree in his favour, dated 13 November, 1942, passed in S.A. No. 283 of 1941 arising out of O.S. No. 207 of 1936 (District Munsiff's Court, Trivellore) wherein it was held that the sale in respondent's favour was invalid and could not affect appellant's rights. The present suit had been filed in 1942 itself after the said decision and before the plaintiff was deprived of his possession by the appellant herein. The defence which was raised by the third defendant who is the only contesting defendant is that the suit is barred by limitation under Art. 132 of the Indian Limitation Act. As the mortgage was dated 9 October, 1918, and no period for payment was fixed, the period of limitation would expire by 9 October, 1930. Prima facie the claim is barred by limitation.

(2.) For the plaintiff respondent, it is contended that the bar of limitation is got over by virtue of an acknowledgment made by the mortgagors which is contained in their sale deed, dated 7 October, 1930, and also by the fact that the rents and profits must be deemed to have been received during the period from 7 October, 1930 down to 1942. It is also contended that in any event, there is a fresh cause of action which accrues to the present plaintiff, when the sale in his favour was declared inoperative or at any rate when he was deprived of the possession of the properties in pursuance of the decree obtained by the appellant in S.A. No. 283 of 1941.

(3.) In second appeal, the learned Judge held that the acknowledgment by the mortgagors will not avail against the puisne mortgagee as the said acknowledgment was long subsequent to the said mortgage in favour of the appellant. This position is now accepted as correct by the respondent.