PALANISWAMI GOUNDAN Vs. RAMASWAMI GOUNDAN

JUDGEMENT

(1.) This appeal raises two points of law, (1) whether the suit was maintainable and (2) whether it was barred by limitation.

(2.) The facts of the case have been fully and accurately set out in judgments of the lower Courts and also in that of Wadsworth, J., in the second appeal. We need not restate them except to the extent necessary for appreciating the contentions of the parties. One Sinnayya Goundan executed a mortgage deed, Exhibit P-1, dated 12 July, 1922, in favour of one Periya Goundan for a sum of Rs. 500. On 24 June, 1924, the same Sinnayya Goundan executed a second mortgage deed in regard to the same property in favour of one Rama Boyan. On 24 September, 1928, Sinnayya Goundan for himself and as guardian of his then minor sons executed a usufructuary mortgage in favour of Periya Goundan, that is, the mortgagee under Exhibit P-1 and also another by name Sinnammal for a sum of Rs. 1,300. The consideration for the mortgage was made up of two items; (1) a sum of Rs. 650 due to Periya Goundan under Exhibit P-1 and (2) a sum of Rs. 650 paid by Sinnammal to the mortgagor. On 10 September, 1929, under Exhibit P-3 Periya Goundan assigned his half share of right in the mortgage dated 24 September, 1928, in favour of first plaintiff for a sum of Rs. 650. Rama Boyan filed O.S. No. 275 of 1940, in the file of the District Munsif's Court, Tirupur, to enforce his mortgage impleading Ramaswami and Chinnammal as defendants 3 and 4. Ramaswami and Chinnammal filed written statements setting up rights to priority by reason of their discharging, Exhibit P-1 by executing the usufrucuary mortgage deed, Exhibit P-2. Exhibit P-4 is the copy of the Judgment, dated 22nd August, 1941 in that suit. The learned District Munsif found in their favour and gave a declaration that they were entitled to priority in respect of the principal amount covered by Exhibit P-1. In execution of the decree in that suit the mortgage properties were sold and purchased by the defendant subject to the prior mortgage dated 12 July, 1922, and he obtained possession on 14th April, 1943. Ramaswami and Chinnammal filed O.S. No. 321 of 1943, on the file of the Court of the District Munsif of Tirupur on 14 July, 1943 to enforce their mortgage rights under the mortgage deed, dated 12 July, 1922, against the auction-purchaser, Palaniswami Goundan in execution of the decree in O.S. No. 275 of 1940. He was the sole defendant to the suit. He raised various contentions which are reflected in the following issues: (1) Whether the suit is in time ? (2) Whether both the plaintiffs are entitled to priority? (3) Whether the debt is wiped out by the enjoyment of the hypotheca by the plaintiffs ? (4) To what reliefs are the plaintiffs entitled?

(3.) The learned District Munsif rejected all the pleas of the defendant and decreed the suit as prayed for. The learned Subordinate Judge on appeal held in favour of the plaintiffs on the question of limitation and also in regard to the plea under the Madras Agriculturists Relief Act but held that it was not competent for the plaintiffs to institute a suit as the mortgage deed, Exhibit P-1, was not assigned to them. He allowed the appeal. Wadsworth, J., in the second appeal preferred by the plaintiffs against the decree and Judgment of the learned Subordinate Judge held that the suit was not barred by limitation and that the plaintiffs were entitled to maintain the suit. In the result he set aside the decree of the lower Court and decreed the suit with costs throughout. The defendant has preferred the above Letters Patent appeal against the Judgments of Wadsworth, J.