JOGENDSA NATH SINGH Vs. MOHANLAL KHAN

JUDGEMENT

(1.) This appeal arises out of a suit to recover the value of paddy due upon a mortgage bond by the sale of immoveable properties mortgaged to the plaintiffs predecessor.

(2.) The Court of first instance gave a decree to the plaintiff but that decree was reversed on appeal by the learned Subordinate Judge on the ground that it was not a suit to enforce payment of money charged upon immoveable property and that, therefore, Article 132 of the Limitation Act did not apply. He relied upon the decision in the case of Rash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 807 : 24 C.L.J. 348. All the terms of the mortgage-bond, and specially the conditions under which the mortgage was to be enforced in default of payment, however, do not appear from the report of that case.

(3.) On the other hand, in the case of Nilmoney Sinha v. Hardhan Das 2 Ind. Cas. 111 : 13 C.W.N. CLXXXIV (184) notes, where the deed recited that the land was given to secure payment of interest in kind, Mookerjee, J., held: "The substance of the transaction was that the land was made security for the value of the paddy, because upon failure to deliver the paddy, the mortgagee would be entitled not to claim specific paddy but merely to recover the price thereof; in other words, the parties contemplated that should it be necessary for the mortgagee to enforce his security the land would be liable for the value of tie paddy payable as interest. In my opinion, it is a reasonable construction of Article 132 to hold that, in a case like this, the interest, which was the value of the paddy, though variable from time to time, was charged upon the mortgaged premises."