Ram Labhaya J-This is an appeal from the order of the Dist. J. L. A. D., dated 4-11-1948 by which the order of the Addl. Sub-Judge, A. Y. D., dated 17-7-1947 granting pltf. a preliminary decree for sale of the mortgaged property against defts. 1.6, was set aside. The pltf. has appealed to this Gt. [2] The facts leading to the litigation are as follows: Dharmanath was the original owner of the land by the gale of which the pltf. wants to recover the mtge. debt due to him. Dharmanath mortgaged 40 bighas out of his share in the land of the patta in question to Mt. Tarapriya, deft. 6, in consideration of a sum of Rs. 1000 on 6-2-1924. On the same day, he borrowed a sum of Rs. 1800 from deft. 7, Bhubindranarayan & mortgaged another 48 bighas out of his share in the patta land. On 2-4-1931, Dharmanath & his brother Ananta (deft. 9) both mortgaged 34 B, 3 K. 12 L. of land jointly to Lalit Chandra Dutta, deft. 8. This mtge was with possession. On 14-6-1931, both the brothers borrowed another sum of Rs. 700 from the same Lalit Dutta & mortgaged the entire lands of the patta. This was a simple mtge. On 5 5-1932, Dharmanath alone executed a mtge. deed in favour of the pltf. for Ea. 980, By this mtge. deed 40 bighas out of his share of the land of the patta were mortgaged to the pit. Dharmanath undertook to repay the loan within a year with interest at 12 per cent per annum. It is on the basis of this mtge deed that pltf. has sued for recovery of the debt by sale of the property mortgaged. [3] On 3-5-1938, Dharmanath was alleged to have paid Rs. 1 towards interest. Another sum of Re. l was said to have been paid on 29-4-1941. The two payments towards the interest were endorsed on the back of the mtge. deed by the mtgor. The suit was instituted on 28-3-1946. The debt under the mtge., became due on G-G-1933. The suit for sale of the mortgaged property would be barred under Art. 132 if limitation was not extended either under 8. 19 or S. 20, Limitation Act. Plaintiff relies on the two payments towards interest on 3-5.1938 & 29-4.1941 respectively for necessary extension of limitation. [4] On 23-3.1933 after the last mtge.
The suit for sale of the mortgaged property would be barred under Art. 132 if limitation was not extended either under 8. 19 or S. 20, Limitation Act. Plaintiff relies on the two payments towards interest on 3-5.1938 & 29-4.1941 respectively for necessary extension of limitation. [4] On 23-3.1933 after the last mtge. in pltf's favour, Dharmanath sold 43 B. 14 L. of land out of his share in the patta land to deft. 8, Lalit who got a separate patta for the area sold to him. On 13 3-1935, Dharmanath sold another 40 bighas out of his share to deft. 7 Bhubindra, the second mtgee. He also got a separate patta for the area purchased by him. Defendant 6, Mt. Tarapriya, sued to enforce her mtge. in 1933. The pltf. in the present case was not a party to that suit. She obtained a final decree for sale in execution of which 40 bigbas of land were sold, & purchased by her on 19-8-1937. These three sales exhaust Dharmanath'a share in the lands of the patta in question. In fact, these sales are admittedly in excess of his share. [5] Plaintiff's case was that he was not aware of the sales in favour of defts. 6-8. He came to know about them some time before the institution of the suit. He pleaded that he was not bound to redeem the mtges. in favour of defts. 6 & 7 as the claims under the mtges. had become barred against him. He, however, prayed in the alternative that if the Ct. found that the claims under those mtges. were subsisting & enforce, able he may be permitted to redeem them in this suit & the sums found due to defts. 6 & 7 be added to the amount due to him under his I mtge. & the property in suit sold for the entire amount. No such prayer for redemption of the mtges. in favour of deft. 8 was included in the plaint. At a later stage leave to amend the plaint with a view to including this relief was sought I for but it was refused. The trial Judge found 1 that the mtges. in favour of defts. 6 & 7 had become extinct & it was not necessary for the pltf. to redeem them. This finding was in favour of the pltf.
The trial Judge found 1 that the mtges. in favour of defts. 6 & 7 had become extinct & it was not necessary for the pltf. to redeem them. This finding was in favour of the pltf. He, therefore, decreed pltf's claim for sale of the property for the amount found due to him on his mtge. The decree was against defts. 1-5, who were the representatives of Dharmanath The pltf. did not appeal from the preliminary decree passed in his favour. Defendant 8 alone appealed. The learned Diat. J. held that the suit for sale of the mortgaged property was time barred. He found that at the time of alleged payments of interest, the mtgor. Dhar-manath, had no interest left in the property. His entire interest in the property bad been sold to defts. 6-8. Payments of interest by him, in these circumstances, could not be effective against the purchasers who were not bound by them. He, therefore, set aside the decree for sale of the property. [6] On behalf of the pltf. the correctness of the order of the learned Dist. J. has been assailed. The first contention raised is that the suit for sale was not barred by time. We do not think this contention has got any force. The learned Dist. J. when holding that the payments of interest, if any, would not bind the purchasers of the equity of redemption, relied on Parayi v. Palanivela Gounder, A. I. R. (27) 1940 Mad. 470 : (I. L. B. (1940) Mad. 872 F. B.) and Bank of Upper India Ltd. v. Robert Her-cules Skinner, A. I. R. (29) 1942 P. 0. 67: (I.L.R. (1948) Lah. 686). His view is fully supported by these authorities. [7] In Parayi v. Palanivela Ooundar, A.I.B. (27) 1940 Mad. 470: (I.L.B. (1940) Mad. 872 P.B.) a F. B. of the Madras H. C. after a careful consideration of a large number of authorities available on the point laid it down that: "A mortgagor, who has lost all interest id the mortgaged property cannot by an acknowledgment within the meaning of S. 19 or by the payment of interest or principal within the meaning of S. 20, bind the person on whom his interest has devolved." The learned counsel has tried to distinguish this case on the ground that the assignee of the mtgor.
in that case was a stranger & not a mtgee. In this case all purchasers were mtgees. This is a distinction without any difference. The proposition laid down by their Lordships of the Madras H. 0. makes no distinction between a mtgee. purchaser & purchaser who had no previous interest in the property. What they held was that an acknowledgment under s. 19 or payment of interest or principal within the meaning of 8. so. Limitation Act, would not bind the person on whom the interest of the mtgor. has devolved if at the time the acknowledgment or payment is made the mtgor. had no interest in the mortgaged property. The rule so stated does not exclude from its operation a purchaser of the mtgor's interest who before such purchase was a mtgee of a part or the whole of the mortgaged property. We do not see how on principle he could be excluded & the operation of the rule limited only to such purchasers of the mtgor's interest as had no right in the property before. [8] The view of law that prevailed with their Lordships of the Madras H. 0. was approved by their Lordships of the P. 0. in Bank of Upper India Ltd. v. Robert Hercules Skinner, A.I.R. (29) 1942 P.O. 67 : (l.L.R. (1942) Lah. 686). The question before their Lordships was whether acknowledgments under 3. 19, Limitation Act, made by a mtgor. who had lost all interest in the property could bind the transferee of the mtgor. Their Lordships held that "An acknowledgment by a transferor given after the transfer of title does not bind the transferee. Section 19 only applies where the acknowledgment hag been made before the transferee has derived his title from the acknowledger." The principle laid down by their Lordships will apply equally to a case of payment covered by s. 20. The mtgor. in this case had sold more than his own interest in the land of the patta & therefore payments by him could not bind the transferees for purposes of giving fresh starts to the period of limitation. A suit for sale, in these circumstances, is obviously barred & we have no doubt that the learned Dist. J. took a right view of the matter in setting aside the decree for sale of the mortgaged property. [9] The learned counsel has next claimed that the pltf.
A suit for sale, in these circumstances, is obviously barred & we have no doubt that the learned Dist. J. took a right view of the matter in setting aside the decree for sale of the mortgaged property. [9] The learned counsel has next claimed that the pltf. may be allowed to redeem the previous mtges. even if he is not entitled to a decree for sale. This is an impossible claim at this stage of the litigation. Plaintiff's case, as put in the plaint, was that the mtges. in favour of defts. 6 & 7 had become extinct. He was not bound to redeem them. He did not say anything about the mtges. in favour of deft. 8 But as regards the mtges. in favour of defts. 6 & 7, he pxayed that if his contention did not find favour with the Ct. & the mtges. in favour of defts. 6 & 7 were held to be alive & subsisting, he may be allowed to redeem these mtges. in this suit & the amount found payable by him be added to his claim & a decree for sale for the total amount be passed. It is obvious that relief for redemption was claimed only as a subsidiary relief & that too if the contention raised by the pltf. that the mtges. were extinct did not prevail. The trial Judge found in favour of the pltf. on this point. His finding was that the mtges. in favour of defts 6 & 7 had become extinct by lapse of time & that pltf. was under no obligation to redeem them. He passed a decree for sale in his favour for the amount found due to him on the mtge. deed in his favour. As the finding on the question of redemption was in favour of the pltf,, he had neither the necessity nor the right of appeal. There was no appeal from him either. Defendant 8 alone appealed from the decree of the trial Ct. & succeeded in having the decree for sale set aside against defts. 6-8. Plaintiff now seeks redemption of the mtges. in favour of defta. 6 & 7 independently of the relief ior sale that was claimed in the plaint. To this extent the relief now claimed is different from that claimed in the trial Ct. Redemption as an independent relief was not sought.
6-8. Plaintiff now seeks redemption of the mtges. in favour of defta. 6 & 7 independently of the relief ior sale that was claimed in the plaint. To this extent the relief now claimed is different from that claimed in the trial Ct. Redemption as an independent relief was not sought. The case of the pltf. was that he was under no obligation to fredeem. He now instead of avoiding the obligation claims the right to redeem. This would alter the nature of the claim. There is yet another difficulty in his way. The finding on the position taken up by him was in his favour. He has no right of appeal against it. Again, be cannot directly appeal to this Ct. from the finding which is in his favour. If this favourable finding prejudiced him in any way, he should have appealed to the Diet. J. Not having appealed to that Ct., he cannot directly appeal against the finding of the trial Judge to this Gt. Here he can merely aak for the restoration of the trial Judge's decree & this is not possible as a decree for sale cannot be granted, the suit for sale having become time barred undec Art. 132, Limitation Act. [10] The right of redemption on which the learned counsel for the pltf. based his argument can only be derived from 8. 91', T. P. Act. Under cl. (a) of that section a mtgee. may redeem previous mtges. The implication may be that a mtgee. who seeks to redeem a previous mtge. must have a subsisting mtge. in his favour. A time-barred mtge. may not bring the case of a mtgee. under cl. (a) of B. 91. The learned counsel for the applt., however, contends that even if the suit for sale has become time barred, the pltf., as a mtgee., can redeem the previous mtges. within 60 years under Art. 148, Limita-tion Act. The learned counsel for the resp. questions the correctness of this view. There is admittedly a conflict of judicial authority on the point. We do not think it necessary for us to resolve this conflict in this case as for reasons given above the pltf. cannot claim this relief at this stage. Besides, even if the view moat favourable to him & expressed in Nathmal v. Nilkant, A. i. R. (20) 1933 Bom. 25 : (141 I. 0.
We do not think it necessary for us to resolve this conflict in this case as for reasons given above the pltf. cannot claim this relief at this stage. Besides, even if the view moat favourable to him & expressed in Nathmal v. Nilkant, A. i. R. (20) 1933 Bom. 25 : (141 I. 0. 811), which is relied on by his learned counsel, is assumed as correct, the pltf. can merely ask for the transfer of the securities of defts. 6 & 7. He could not get possession as defts. 6 & 7 were not in possession under their mtges. which were admittedly simple in character. So far as deft. 8 is concerned, the mtge. was with possession to the extent of about 17 bighas only. Redemption of this mtge. was not claimed at all & the claim, therefore, cannot be entertained at this stage. The result is that pltf. cannot get posses, sion even if he is permitted to redeem the mtgea. in favour of defts. 6 & 7. His learned counael states that he does not want redemption if possession is not allowed to him. He is not satisfied with a mere transfer of securities In these circumstances the order of the learned Dist. J. must be upheld. [11] The appeal is accordingly dismissed with costs. [12] Thadani C. J. - I agree in the result, but would add a few words. [13] I do not wish to be understood as subscribing to the proposition stated by my learned brother at p. 6 of his judgment (see para 10 of the report), namely. "The implication may be that a mtgee. who seeks to redeem a previous mtge. must have a subsisting mtge. in his favour." For myself, I am content not to imply anything into the plain language of cl. (a) of B. 91, T. P. Act. K.S. Appeal dismissed-