RAM KHELAWAN SINGH Vs. RAMNANDAN PRASAD SINGH

JUDGEMENT

(1.) The plaintiffs brought the suit alleging that on 14 May 1918 defendants 1st party had executed a simple mortgage bond in their favour for a sum of Rs. 221- 8-0 with respect to properties mentioned in Schedule A of the plaint. On 27th February 1928, defendants 1 party executed a second mortgage bond in favour of defendants 2nd party as regards properties covered in part by Schedules. A and B of the plaint. On 14 May 1929, the defendants 1 party sold to the plaintiffs by registered kebala the properties described in Schedule B of the plaint. Out of the price of Rs. 600 a sum of Rs. 452-12-0 was set off on account of the amount due on the mortgage bond of 1918 and the balance of Rupees 147-4-0 was set off with respect to two hand-notes. In 1936 defendants 2nd party instituted a suit on their bond and obtained a mortgage decree. In execution of the decree defendants and party purchased the properties described in Schedule. B of the plaint. They obtained delivery of possession through Court, thus dispossessing the plaintiffs. The plaintiffs claimed that according to the terms of sale deed they were entitled to enforce the mortgage bond of 1918, should any defect be discovered in the properties conveyed. The plaintiffs accordingly asked for a mortgage decree for a sum of Rs. 452-12-0 be-sides interest. Defendants 1 party did not appear but defendants 2nd party contested the suit on the ground that it was time-barred. The learned Munsif held that the plaintiffs were not entitled to a mortgage decree. But he pronounced a money decree ex parte for the amount claimed against 1st party defendants.

(2.) In appeal the learned Subordinate Judge held that the plaintiffs were alse entitled to a mortgage decree against the defendants.

(3.) On behalf of defendants 2nd party who have preferred this appeal learned advocate presented the argument that the Subordinate Judge was erroneous to hold that the suit was not barred by time. The Subordinate Judge considered that by executing the sale deed of 14 May 1929 defendants 1 party had made acknowledgment which provided a fresh start for limitation; that defendants 2nd party were bound by the acknowledgment and had only a right to redeem as a subsequent mortgagee purchaser. The opinion of the Subordinate Judge is incorrect. In Surjiram Marwari V/s. Barhamdeo Prasad 1 CRI.L.J. 337, Sir Asutosh Mookerjee held that the acknowledgment of a mortgagor in favour of first mortgagee would not operate against second mortgagee whose title originated before the acknowledgment had been given. He relied upon the observation of Lord Westuury in Bolding V/s. Lane (1863) 1 G.J. & S. 122, where that eminent Judge in reversing the decision of Vice-Chancellor Stuart to the effect that an acknowledgment by a mortgagor in favour of the first mortgagee operates as against a second mortgagee whose title originated before the acknowledgment was given remarked as follows: This decision leads to very extraordinary and alarming consequences. If it be well founded, then according to the true intent and meaning of this Statute, the right of one man may be taken away by the Act of another. If the second mortgagee be in possession, and the first mortgagee seeks to recover his principal and arrears of interest for twenty years by a suit for, foreclosure or sale, is the second mortgagee to be at liberty to plead or insist on this enactment? It is impossible to deny his right so to do. But according to this decision, if the first mortgagee obtains at any time the acknowledgment in writing of the mortgagor or his representative, the right of the second mortgagee is defeated, and all the arrears are recoverable against the second and subsequent mortgagees. That is to say, the mortgagor or his representative, who may have no interest whatever in the lands (for the ultimate equity of redemption may not be worth one shilling), shall be enabled to charge the estate anew with any amount of arrears of interest as against the second and subsequent mortgagees. The Court is bound by every principle of judicial interpretation to find, if possible, a construction of the statute which does not involve consequences so inconsistent with natural justice.... In Bank of Upper India Ltd. V/s. R.H. Skinner A.I.R. 1942 P.C. 67, the Judicial Committee approved the judgment of Sir Asutosh Mookerjee and held that Section 19(1), Limitation Act would not apply in the case of a mortgage where the mortgagor's written acknowledgment to the mortgagee was of a date subsequent to a transfer by the mortgagor of his remaining interest in the property mortgaged to a third party. Again in Munshi Lal V/s. Hira Lal A.I.R.1947 All. 74, a Full Bench held that an acknowledgment given by a mortgagor in favour of a prior mortgagee did not preclude an inter-mediate mortgagee, whose title accrued before the acknowledgment was given, from relying on the Limitation Act as a bar. In my opinion, the section must be construed according to the principle enunciated in these decisions. It follows that in the present case the acknowledgment in the sale deed of 14 May 1929 would not operate against the defendants 2nd party in whose favour defendants 1 party had already executed a mortgage on a previous date.