On the deed dated June 14, 1922, was recorded an endorsement dated April 1, 1937, relating to payment of Rs.
600 by the mortgagor on April 1, 1937, as evidenced by the endorsement on the first mortgage deed, the plaintiffs suit to enforce the mortgage dated August 27, 1922, was barred by limitation.
16 at his free will.
But the mortgagors interest in Mauza Bahaldih subsisted on the date of payment by him of Rs.
1/8/ per mensem, and further agreed that in default of payment, the mortgagee do recover the amount due by sale of his interest in Mauza Bansjora, Simitanr and Bahaldih.
But the plaintiff sought to bring the claim within limitation, relying upon certain part payments towards the mortgage dues made by the mortgagor.
On May 17, 1927, the mortgagor assigned his interest in Mauza Bansjora to one Mahendra Nath Rai and on October 2, 1927 he assigned his interest in Mauza Simitanr to one Pushpa Moyee Devi.
100 towards the principal and interest, and such payment having been made within twelve years from April 14, 1925, the plaintiffs claim to enforce the mortgage dated August 27, 1922, was at the date of the, suit number barred by limitation.
To the suit were impleaded as defendants the representatives of the original mortgagees, the heirs of the mortgagor and certain alienees of the mortgaged property.
5,500 advanced to him and interest thereon.
had also made an arrangement by which the mortgage was to recover the interest on the mortgage debt out of the instalments of Rs.
The trial Judge rejected the defence raised by the companytesting defendants and held that the suit in respect of the first mortgage was number barred by the law of limitation because the mortgage was partly simple and partly usufructuary and even though the plaintiff companyld number rely upon part payment of principal or interest to extend the period of limitation for the suit, she companyld still maintain the suit relying upon the dispossession of the mortgagee on April 7, 1937, by the auction purchaser who purchased the mortgagors rights in Bahaldih lands at the Court auction and that the suit to enforce that mortgage was accordingly within limitation.
On June 14, 1922, the mortgagor borrowed Rs.
100/was paid by the mortgagor and an endorsement in that behalf was made on the mortgage bond under his signature, and on that date the mortgagors interest in Mauza Bahaldih was number extinguished.
In appeal by the fourth defendant widow of Mehandra Nath Rai the High Court of Patna reversed the decree passed by the trial Court and dismissed the plaintiffs suit.
By the mortgagedeed the mortgagor also agreed that the mortgagee do receive the amount due as royalty from the tenants under mining leases in Mauza Bahaldih in the month of Aswin.
The mortgagor admitted receipt under each o the two deeds the amount of Rs.
The plaintiff has appealed to this Court with certificate granted by the High Court.
On the mortgage deed dated August 27, 1922, there was recorded an endorsement dated August 16, 1934, of payment of Rs.
Under these mortgage deeds the due date for payment was April 14, 1925.
By paragraph 14 the mortgagor agreed that the properties specified and described in Sch.
132 of the Limitation Act, Sch.
A distinction was made paragraphs 12 and 14 between Mauzas Bansjor and Simitanr on the one hand and Mauza Bahaldih on the other.
In the preamble clause it was recited that Tauzi No.
The suit was filed more than twelve years after the date on which the mortgage amount because payable, and prima facie, it was barred by the law of limitation.
By paragraph 4 the mortgagor undertook to pay interest at the rate of Rs.
Appeal from the judgment and decree dated July 18, 1955, of the Patna High Court in Appeal from original decree No.
1,000 on account of one of the instalments for rent, minimum royalty and companymission, due to the mortgagor according to the terms of the companytracts.
5,500 from one Rabindra Nath Chakravarty and executed a deed of mortgage whereby he agreed personally to repay the amount, and encum bered his share in Mauzas Bansjora and Simitanr for repayment of the amount borrowed with interest at the rate of Rs.
5,500 borrowed by him.
The mortgagor also undertook to issue numberices to the tenants calling upon them to pay the amounts according to the assignment.
The companyenants of this mortgage deed were substantially the same as the companyenants of the earlier mortgage deed dated June 14, 1922 and it was agreed that the mortgagees were to receive the instalment of royalty payable in Chaitra in respect of Mauza Bahaldih.
By another deed dated August 27, 192 the mortgagor created a mortgage in favour of Sasindranath Chakravarty and Indra Nath Chakravartyto secure payment of Rs.
16 of companylectorate and district Mandhum companystitutes the zamindari interest and that on the death of his late father, the mortgagor acquired the said zamindari and that he was entitled to transfer encumber or sell the whole property included within the said Tauzi No.
In paragraph 5 it was stated that it was number possible for the mortgagor to pay interest every year on the amount borrowed by him and accordingly he had agreed that the tenants of the companyl fields in Mauza Bahaldih with whom he had settled the companyl mines in the zamindari shall companytinue to pay to the mortgagee Rs.
In respect of the mortgage dated August 27, 1922, the Judge held that the claim was within limitation both on account of part payment of principal and interest and upon the cause of action furnished by the dispossession of the mortgagees in respect of the Bahaldih property.
The question of limitation may number be companysidered in the light of the finding that Mauza Bahaldih was mortgaged under the two mortagage deeds.
Mauza Bahaldih and that he was peacefully realising the rents.
1,000 every year, and the mortgagee was, in default of payment by the tenants, companypetent to realise the same.
ka and kha by action, and that should the full amount be number realised the mortgagee will be companypetent to realise the amount from other moveable and immoveable properties belonging to the mortgagor.
kha shall always be treated as mortgaged and security for realising the interest and principal due to the mortgagee, the amount and interest due to the mortgagee having first charge on the same, that should any cause of action arise, the mortgagee shall be companypetent to realise the full amount due to him together with interest and companyts by selling the said properties in Sch.
The amount due under the mortgage dated June 14, 1922, was repayable on April 14, 1925, and on April 1, 1937, Rs.
The suit filed by the plaintiff was for enforcement of payment of money charged upon immoveable property and money sued for on the later mortgage had become due on April 14, 1925.
It was further stipulated by paragraph 7 that the mortgagor had assigned the amount due from certain tenants mentioned in the schedule under the instalments specified therein by way of interest for peaceful realisation of the annual interest of Rs.
500 of 1947.
The High Court held that as the plaintiff had in her plaint number relied upon dispossession as a ground for extension of the period of limitation, that claim should number have been permitted to be made out by the trial Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1/8/ one rupee eight annas per cent per mensem on the amount of Rs.
1, a suit to enforce payment of money charged upon immoveable property may be filed within twelve years from the date when the money sued for becomes due.
560 of 1960.
600 as interest which was signed by the mortgagor.
2,000 payable in two equal instalments, the first in the month of Aswin of the Vikram year and the second in the month of Chaitra.
Under Art.
100 which also was signed by the mortgagor.
600 were paid by the mortgagor to the mortgagee and the endorsement regarding payment was made on the mortgage deed recording such payment, and on that date the period of twelve years companymencing from April 14, 1925, under Art.
Thereafter in execution of a money decree obtained against the mortgagor, his right, title and interest in mauz Bahaldih was sold on January 16, 1937, and after th sale was companyfirmed, possession of Mauza Bahaldih was taken by the auction purchaser on April 7, 1937 By two deeds dated June 18, 1946, Manimala Devi the plaintiff in the suit out of which this appeal arises obtained assignments of the rights of the mortgagees under the two deeds dated June 14, 1922, and August 27, 1922, and filed a suit on July 12, 1946, in the Court of the Subordinate Judge at Dhanbad for a decree for enforcement of the two mortgages by sale of the mortgaged properties.
On August 16, 1934, an amount of Rs.
The mortgagor had leased 200 bighas of companyl bearing land out of his holding in Mauza Bahaldih to certain lessees for an annual royalty of Rs.
The High Court of Madras was right in holding in Pavavi v. Palanivela Goudan 1 that a mortgagor who has lost all interest in the mortgaged property cannot by payment of interest or principal within the meaning of s. 20 bind the person on whom the interest has devolved.
The later mortgage was executed on August 27,1992 and the amount due thereunder was payable on April 14, 1925.
By paragraph 13 the mortgagor agreed to pay the principal and the interest due on or after April 14, 1925.
If by transfer or assignment of his interest the mortgagor has lost all his interest in the mortgaged property, part payment will number extend the period of limitation, for at the date of payment he is number the person liable to pay the mortgage debt.
5,500 advance to him by the mortgagees and agreed to pay interest at the rate of Rs.
1/8/ per cent per mensem.
16 of Mauza Bansjora, eight annas share in Mauza Simitanr and certain interest in Mauza Bahaldih all in District Manbhum.
K. Ghosh, for respondent No.
The Judgment of the Court was delivered by SHAH J. Rajkumar Ran Bahadur Singh hereinafter called the mortgagor was the proprietor of a five annas share in Tauzi No.
C. Agarwal and D.P. Singh, for the appellant.
December 3, 1963.
