JUDGMENT - Tulpule R.D. J.-The only question raised in this second appeal is one of limitation as both the Courts below have dismissed the plaintiff's suit on the ground that it is barred by time. Both the Courts held that Article 62 applied and the suit not having been filed within 12 years from the date the document was executed it was barred. 2. The document-held to be a mortagage is really a conditional sale deed or a sale deed coupled with a condition to reconvey and would, there-fore, be an anomalous mortgage executed on the 19th May 1952. The suit was filed on 19th June 1967, i.e. 15 years thereafter and it was stated that it is filed on 19th of June 1967 as on the 19th May 1967 when the limitation would have expired, the Court being closed for the Summer Vacation, it was filed on the reopening day. In* the printed record that date has been given as 19–7-1967 of the date of institution of the suit which is clearly incorrect as also the date of the execution of the document as 15th May 1952 which is also wrong. 3. One more fact which is not in dispute is that though the document was a conditional sale deed and the property was said to have been delivered in the possession of the purchaser, it was not actually delivered. The period within which repayment was to be made was a period of 3 years. 4. In holding that the suit has barred by time in both the courts it was apparently held that section 68(1)(d) of the Transfer of Property Act came into operation and the mortgagee not having recovered the possession of the mortgaged property, was bound to proceed to recover the mortgage money and enforce the mortgage bond. For that the article of limitation applied, according to the trial Court, was apparently Article 132. He observed : “Obviously, the mortgagee was entitled to sue for the mortgage money immediately. As per article 62 of the Limitation Act, 1963 the limitation is twelve years to enforce the payment of money secured by a mortgage or other-wise charged upon immovable property. The limitation starts when the money secured becomes due. He observed : “Obviously, the mortgagee was entitled to sue for the mortgage money immediately. As per article 62 of the Limitation Act, 1963 the limitation is twelve years to enforce the payment of money secured by a mortgage or other-wise charged upon immovable property. The limitation starts when the money secured becomes due. Similarly, as per sub-article (b) of Article 63 of the said Act the possession of mortgaged property should be recovered within 12 years from the date when the mortgagee becomes entitled to the possession Thus in any event the plaintiff should have lodged this suit for recovery of mortgage amount or the mortgaged pro-perty within 12 years of date of execution of the mortgage deed.” 5. Before the appellate Court reference was made to the section 68(l)(d), Transfer of Property Act and also the Article 62 as well as to Article 132, Limitation Act. According to the appellate Judge Article 62 was wider than Article 132. This conclusion he reached on the basis of the change in the phraseology in the two Articles which are not identical. “He therefore, also held that this was a suit to enforce a mortgage debt and had to be filed within 12 years from the date the debt became due. He then referred to the decision in (Sidramaya v. Danaya)1, and the circumstance that that case over-ruled the earlier Bombay decision in (Dnyanoba v. Dattoba)2. He then makes a reference to the decision in (Monimala Devi v. Indubala)3, and in spite of these two decisions, namely Sidramaya's case and Monibala Devi's case, proceeds to say that the suit was one to recover the mortgage money and “has therefore to be construed as a suit for compensation and the limitation would run from the date of mortgage and not from the date when the money has been made payable under a covenant embodied in the mortgage-deed”. He, therefore, held that the suit is barred both under Article 62 and Article 113 of the Limitation Act. In his opinion, the suit ought to have been filed within 12 years from the 19th May 1952, it having been filed beyond 12 years barred by time. He, therefore, held that the suit is barred both under Article 62 and Article 113 of the Limitation Act. In his opinion, the suit ought to have been filed within 12 years from the 19th May 1952, it having been filed beyond 12 years barred by time. It may, however, be mentioned that though at the end of Ms judgment embcdying the conclusions he reached he said so, in the earlier part of his judgment the learned Judge had observed that the instant suit was “for recovery of the mortgage debt by foreclosing the mortgage”, it will thus be seen that though the learned Judge at one time noted the suit was for foreclosure, at another stage he held the suit to be one to recover compensation for loss of property by the mortgagee from his possession. 6. The plaint recitals clearly say that the plaintiffs not having been put in possession were entitled to recover the mortgage debt by foreclosing the mortgage. Though that is not in so many words stated in the plaint the prayer clause make that clear. It says that “the defendants be directed to make payment of Rs. 4,000 to the mortgagee” and “on failure of defendants to pay the decretal amount within the time as would be stipulated by the decree, the property described in para 1 (d) be ordered to be foreclosed and the plaintiffs be put in possession thereof.” 7. It is thus clear that this was a suit for foreclosure, namely, for a declaration that upon failure of the defendants to pay the amount directed or found due under the preliminary decree by the Court, the right to redeem of the defendants-mortgagors be permanently debarred and the plaintiffs put in possession of the property. There is very little in the plaint which would suggest that the plaintiffs were suing for compensation on account of loss of the property to which they were entitled to possession under the document. Even if it were to be construed as a suit to recover the money under a personal covenant entered into under the mortgage deed still the right to recover that amount or the entitlement to it apart from section 68(1)(d) was there when the personal covenant could be called in. 8. Even if it were to be construed as a suit to recover the money under a personal covenant entered into under the mortgage deed still the right to recover that amount or the entitlement to it apart from section 68(1)(d) was there when the personal covenant could be called in. 8. I have already referred to the terms of the document and that a period of 3 years had been prescribed for repayment and reconveyance of the property from the date of the execution of the documents from 19th May 1952. Section 68(1), the opening words of which are material, Jay down that the rights^ enumerated in that section are rights conferred upon the mortgagee “to sue for mortgage money” in all cases mentioned in the sub-section and in no other. The first sub-section thereof says that the mortgagee would be entitled to sue for the mortgage money (“sub-section (a)) where the mortgagor binds himself to repay the same.” As I have pointed out the mortgagor in this case has bound himsalf to pay the mortgageamount within 3 years, namely, on or before 19th May 1955. The mortgagee, therefore, had a right to sue for the mortgage amount when the mortgagor had personally bound himself to repay the same. Even if, therefore, the present suit were to be construed as a suit to enforce the mortgage amount oh the basis of the personal covenant, the personal covenant gave a right and also allowed the mortgagor to pay the amount till 19th of May 1955. It is within 12 years thereafter and therefrom that the mortgagee was entitled under section 68 of the Transfer of Property Act to sue for the mortgage money. 9. Under the Transfer of Property Act a mortgagee has a right to sue for foreclosure and/or sale of the mortgaged property depending upon, the kind of mortgage executed in his favour. In the present case there is clearly no right for sale of the mortgaged property or to bring it to sale to, the mortgagee. Only right which he has keeping the rights under section 68 for the time being aside is to sue for foreclosure and for possession if he was not in possession and if he was in possession only for foreclosure. A mortgagee may have, therefore, more than one set of rights under the document or under the law. Only right which he has keeping the rights under section 68 for the time being aside is to sue for foreclosure and for possession if he was not in possession and if he was in possession only for foreclosure. A mortgagee may have, therefore, more than one set of rights under the document or under the law. Section 68 confers a set of rights upon him in the event of one of the circumstances mentioned in clauses (a) to (d) coming into operation. Those are, however, rights and the mortgagee is not bound to exercise any one or all of these rights, no sooner the event mentioned in those sub-clauses takes place; Notwithstanding the rights conferred upon a mortgagee under section 68 mortgagee may still choose not to avail himself of those rights but to sue for foreclosure essentially and basically. It is what the mortgagee is doing and the suit he has laid which will determine the article which would be attracted. One of the primary rules for determining which Article of Limitation Act applies to a suit is to determine firstly what the suit is. If the present suit is a suit for foreclosure, then the article which applies of the Limitation Act is Article 63 and not Article 62. In a suit for foreclosure also a preliminary decree determining the mortgage amount payable by the mortgagor has to be made. It is only upon the failure of the mortgagor to deposit the amount declared to be due under the mortgage that a final decree for foreclosure debarring the mortgagor permanently from redeeming the property which can be and is passed. Though it was clearly at one stage understood that this was a suit for foreclosure and therefore in terms fall only under Article 63, the Court resorted unnecessarily to the provisions of section 68 of the Transfer of Property Act and thereby to Article 62 construing and determin-ing the suit not as one filed by the plaintiff, but as they thought the suit is and must be. Apparently and in other words, it seems to be the view notwithstanding the overruling of the decision in Dnyanoba's case (supra) by the decision in Sidramaya's case that section 68 is a section which gives an option to the mortgagee to exercise the rights given thereunder, the courts seem to have fallen under the very fallacy which the appellate Court points out was the basis of the decision in Dnyanoba's case and was subsequently overruled. I am unable to understand as to how having dealt with the two decisions in AIR 1954 Bombay 407 and AIR 1964 S C 1295 (supra), the Court could have come to a. conclusion that this was a suit to recover the mortgage amount. 10. There is also a misreading of the judgment in Monimala Devi's case. The learned appellate Judge has held that this was a suit for compensa-tion by the plaintiff-mortgagee who was deprived of .the mortgaged property to which he was entitled. In doing so, the learned Judge seems to have overlooked the first part of the observation of the Supreme Court which is to the following effect: “That right conferred by section 68 is again not a right to enforce the mortgage but a right to sue for the mortgaged money on the personal covenant or to claim compensation when the mortgagee is deprived of his security.” It will thus be seen that what section 68 confers is a right and not an obligation. The distinction between the two had been clearly pointed out by the Division Bench of this Court in Sidramaya's case. If, therefore, there was no obligation under section 68, to avail of the right conferred thereunder and mortgagee avails himself of another right which has conferred under the law, namely, foreclosure of the mortgage, 'then it is not possible to see how the mortgagee must be held to have one of these rights under section 68 Jo which he is entitled, but is not obliged to follow, that the limitaton must be in accordance with such view of what the mortgagee must do erroneously taken by the Court. ' 11. If the suit is and can be construed also even assuming that sec-tion 68 applies as one “to sue for the mortgage money on the personal covenant” then also the suit could still be filed at any time subsequent to 19th May 1955 and within 12 years. ' 11. If the suit is and can be construed also even assuming that sec-tion 68 applies as one “to sue for the mortgage money on the personal covenant” then also the suit could still be filed at any time subsequent to 19th May 1955 and within 12 years. Even if the suit is therefore to be construed as one seeking to enforce a right conferred under section 69 (1), then such a suit could have been filed prior on or before 19th May 1967 and since the Courts were closed on the 19th May 1967, it could be filed on the opening day of the Courts which was done in the present case. As has been pointed out by the Division Bench of this Court in A I R 1954 Bombay 407, the mortgagor by his own default and by his own act cannot deprive the mortgagee of a larger period of limitation, which is given to him under the Limitation Act and cannot enforce upon the mortgagee a particular remedy and suit notwithstanding the Transfer of Property Act and the document confers upon him an altogether different right. Unless there were words anywhere.in the statute that mortgagee must in the event of any of the facts or matters and incidents occurring contemplated in section 63 sue for those rights and for no others, the interpretation and the conclusion of the Courts below is clearly erroneous. 12. This position is also clear from a later decision of the Supreme Court in (Ramprasad v. Vijay Kumar)4. There the question arose in different form and the question was as to when the suit must be deemed to have been filed as against the parties added at a subsequent stage as defendants to the suit. But it not only illustrates but emphasises the principle referred to above by me. There the mortgage was executed on 13th December 1934 and the mortgage amount was payable on 13th December 1943. The suit in question came to be filed sometimes in the year 1952, while the persons sought to be joined as added defendants were joined in the year 1958. It was observed, “the suit would be barred by limitation if it were instituted on 4th November 1958? when Mahabalkumari, Rajkumari and Premkumari were added as parties to the suit. The suit in question came to be filed sometimes in the year 1952, while the persons sought to be joined as added defendants were joined in the year 1958. It was observed, “the suit would be barred by limitation if it were instituted on 4th November 1958? when Mahabalkumari, Rajkumari and Premkumari were added as parties to the suit. If it had been right to say that the mort-gage amount became recoverable and the mortgage could be enforced in the circumstances on the date when the mortgage was executed, namely, in this case on 13th December 1934, then the suit would havebeen barred much earlier even before it was instituted somewhere in 1952. It was not held that the suit as filed was barred against defendants who were parties before the Court. But it was held that it was barred against the added defendants who were added on 4–11–1958. That, therefore, makes quite clear that the period of limitation has not been determined by reference to any of'the various rights to which a mortgagee may become entitled and construing the suit as one which gives him the shortest period of limitations. If a suit properly falls under another article of Limitation Act which gives a longer period, then it is that period of limitation to which the plaintiff is entitled and can-not be denied. 13. Consequently the orders passed by the Courts below dismissing the suit as being barred by time will have to be set aside and the suit sent back to the trial Court holding that it was in time and for passing such further orders as are liable to be passed in view of the other findings of the Courts which are not challenged and which cannot be challenged in this Court being findings of fact. One such finding is that the debts were not legal necessity. Khushalrao the original mortgagee is dead. The relation of the defendants with Khushalrao, however, • is not clear from the record. Mr. Kherdekar contended and as has been noted by the learned appellate Judge also that even if the debts incurred-were not for legal nec:ssity, still so far as Khushalrao's share is concerned, all the property of Khushalrao in the hands of his heirs would be liable for the satisfaction of the mortgage debt. Mr. Kherdekar contended and as has been noted by the learned appellate Judge also that even if the debts incurred-were not for legal nec:ssity, still so far as Khushalrao's share is concerned, all the property of Khushalrao in the hands of his heirs would be liable for the satisfaction of the mortgage debt. The trial Court will consider this aspect of the matter and pass an appropriate order after hearing parties in that behalf. There will be no orders as to costs. Dismissal set aside and case remanded. -----