Pushkar Prasad vs Suraj Prasad Mahajan and Others

Manohar Lall, J.—This is an appeal by defendant 1 who is aggrieved by the concurrent decisions of the Courts below by which they have decreed the mortgage suit against him. The question for decision is whether the suit was barred by limitation as against the appellant.

The plaintiff sought to enforce a mortgage bond dated 12-9-1927, of which the due date of repayment was 29-9-1928. The suit was filed on 30-9-1940, as 29th of September, was a Sunday. The plaintiff impleaded besides the family of the mortgagors also defendant 9 as a subsequent transferee who filed a written statement to the effect that the property which he has purchased was in the possession of the appellant a3 a result of some execution also held in realisation of a rent decree. Pushkar Prasad, defendant 10, the appellant before this Court, was accordingly impleaded as a defendant 10 by a petition filed on 8-2-1941. It would be noticed that on that date the mortgage suit against the appellant had become barred by limitation.

Defendant 10, after he was served with summons, filed a written statement in which inter alia he contended that the suit against him was barred by limitation. The Courts below have concurrently overruled this contention upon their view that as the plaintiff had no knowledge of the transfer in favour of the appellant before 18-2-1941, the suit was within time even as against the said defendant-appellant. Hence the second appeal to this Court.

In my opinion, the Courts below have taken an erroneous view of the law and the learned Additional District Judge, who has otherwise written a careful judgment, was wrong in refusing to follow the decisions which he has noticed in his judgment but sought to distinguish erroneously.

To begin with; it is appropriate to recall attention to the weighty words of their Lordships of the Judicial Committee in the Privy Council case in AIR 1932 165 (Privy Council) where they observed that:

The fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship.

and that

in construing such provisions, equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide.

Again, in AIR 1935 85 (Privy Council) their Lordships overruled the argument that there was some sort of judicial discretion which would enable the Court to relieve the party from the operation of the Limitation Act in a case of hardship, in these words:

It is enough to say that there is no authority to support the proposition contended for. In their Lordships'' opinion it is impossible to hold that, in a matter which is governed by the Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that section 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings.

Such then, being the position in law, how could the period of limitation to enforce a mortgage security which is fixed by Article 132, Limitation Act, be extended? Learned advocate for the respondents suggested that the due date, which is the starting point of the limitation as mentioned in column 3 of Article 132, should be construed to mean the date when defendant 10 having been made a party was apprised of his rights to redeem and pay up the mortgage debt. I am unable to accept this argument as sound. The due date can only mean the date fixed in the mortgage bond as the date by which the mortgage amount should be repaid and it cannot have any reference to the transfer by the mortgagor which brings into existence a transferee like the present appellant before this Court who was not in existence on the due date or on the date of the mortgage transaction.

The learned Additional District Judge sought to support his conclusion by relying upon Sambasiva Ayyar v. Subramania Pillai AIR 1936 Mad. 70 , Surendralal Kundu Vs. Ahmmad Ali, and Mt. Nand Kuer v. Kunj Behari Lal AIR 1927 Pat. 411 , but in all those cases it will be observed that the cause of action arose to the plaintiff in his capacity not as a mortgagee but as an auction-purchaser who had become the owner of the property and was resisted in taking delivery of possession from the transferee of the equity of redemption, whom he bad not joined in the mortgage suit. Several of these cases were reviewed by me in Ganga Prasad Singh Vs. Mt. Ganeshi Kuer and Others, but the position in those cases does not exist in the present case.

In Gopalan Nair v. Moideen Madar Rowther AIR 1935 Mad. 680, adhavan Nair, J. took a similar view as reported in the head-note that:

The purchaser of the equity of redemption in a suit by the first mortgagee to which the second mortgagee whose existence was not known had not been impleaded, gets a fresh cause of action to enforce the mortgage against the second mortgagee from the date of the purchase in execution and consequently a suit to enforce the first mortgage against the second mortgagee which is instituted within 12 years of the date of purchase would not be time barred even though it is institutes after the expiry of more than 12 years from the date of the mortgage.

It is not necessary in this case to decide what the equities would be if and when the plaintiff becomes an auction-purchaser in execution of the mortgage decree which he has obtained in the Courts below and is resisted by defendant 10.

On the other hand, the present case falls expressly within the Full Bench case in Ram Kinkar Biswas v. Akhil Chandra 11 C.W.N. 350 where it has been clearly laid down that even where a subsequent transferee is made a party at the instance of the Court after the expiry of the period of limitation, the mortgage suit must be dismissed as against him on the ground of limitation. There the learned Chief Justice in the course of the argument put this question to the advocate for the plaintiff "How, is your security affected?" and the answer was given:

It is not affected in any way as the plaintiff would have no grievance if he gets a decree for sale of the entire mortgage security.

On the above grounds, therefore, I am satisfied that the Courts below are wrong in holding that the suit of the plaintiff was not barred by limitation on the date when the appellant was made a party.

The result is that the appeal is allowed, the decisions of the Courts below are set aside and the suit is dismissed against the appellant. As the appellant put forward the defence that the mortgage bond in suit was a farzi transaction and no consideration actually passed thereunder and that the property which he had purchased at the auction-sale does not form part of the mortgage security, I would direct that as between him and the plaintiff, respondents each party will bear his own cost in this litigation in this Court and in the Court below.

Mukhar j.

I agree.