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TMI Blog1963 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. By another deed dated August 27, 192 the mortgagor created a mortgage in favour of Sasindranath Chakravarty and Indra Nath Chakravartyto secure payment of ₹ 5,500 advanced to him and interest thereon. The covenants of this mortgage deed were substantially the same as the covenants 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. Under these mortgage-deeds the due date for payment was April 14, 1925. 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. Thereafter in execution of a money decree obtained against the mortgagor, his right, title and interest in mauz Bahaldih w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldih property. 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 plaintiff's suit. The High Court held that as the plaintiff had in her plaint not relied upon dispossession as a ground for extension of the period of limitation, that claim should not have been permitted to be made out by the trial Court. The High Court also held that Mauza Bahaldih was not given in mortgage to the mortgagees under either of the two mortgagedeeds and dispossession of the mortgagees from Mauza Bahaldih or part payments of principal or interest after the mortgagor had parted with his interest in the mortgaged properties Mauzas Bansjora and Simitanr could not operate to extend the period of limitation for the suit. The High Court further held that in any event even if Mauza Bahaldih was one of the mortgaged properties, the mortgagor having lost his interest in Mauzas Bansjora, Simitanr and Bahaldih prior to the payment of ₹ 600 by the mortgagor on April 1, 1937, as evidenced by the endorsement on the first mortgage deed, the plaintiff's suit to enforce the mortgage dated August 27, 1922, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ₹ 1,000 every year, and the mortgagee was, in default of payment by the tenants, competent to realise the same. The mortgagor also undertook to issue notices to the tenants calling upon them to pay the amounts according to the assignment. By paragraph 9 it was agreed that in the event of the tenants failing to pay the amount, the mortgagor would compensate the mortgagee in respect of the amount remaining to be realised. Paragraph 12 provided that so long as all the amounts were not repaid in full, the mortgagor was not competent to gift, sell transfer or encumber, make banami or permanent settlement of the mortgaged property specified and described in Sch. (kha) i.e. Mauzas Bansjora and Simitanr with any one and that the alienations made by him would be null and void. He further declared that the said properties had not been encumbered to any person and that he was in peaceful possession of the mortgaged property described in Sch. (ka) viz., Mauza Bahaldih a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgaged. That may prima facie suggest that those two Mauzas alone were mortgaged, but the mortgagor had in the same paragraph agreed that should any cause of action arise the mortgagee shall be competent to realise the full amount due to him together with interest and costs by selling Mauzas Bansjora simitanr and Bahaldih. The mort- gagee could not sell the mortgagor's interest in Mauza Bahaldih in satisfaction on his mortgage claim, unless it was mortgaged to him. The intention appearing from this covenant is therefore clearly to encumber Mauzas Bansjora, Simitanr and Bahaldih. The High Court, in our view, was in error in holding that the mortgagor's interest in Mauzas Bansjora and Simitanr only was mortgaged. The question of limitation may now be considered in the light of the finding that Mauza Bahaldih was mortgaged under the two mortagage-deeds.The later mortgage was executed on August 27,1992 and the amount due thereunder was payable on April 14, 1925. On August 16, 1934, an amount of ₹ 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 mortgagor's interest in Mauza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on that date the period of twelve years commencing from April 14, 1925, under Art. 132 of the limitation Act, had not expired. But before that date the mortgagor had lost interest in all the properties mortgaged by him-in Mauza Bansjora on May 17, 1927, in Mauza Simitanr on October 21, 1927, and in Mauza Bahaldih by the auction sale which became affective from January 16, 1937. The period of limitation in respect of the first mortgage could not, for reasons already set out, be extended by part payment made after the mortgagor lost all his interest in the property mortgaged. The plaintiff has not relied upon any other part payment in respect of the first mortgage before the mortgagor's interest in the mortgaged properties was transferred, to extend the period of limitation for a suit to enforce the mortgage. But the plaintiff relied upon the sale of the mortgagor's interest at a Court auction and his dispossession as furnishing a fresh cause of action for enforcement of the mortgage. It was urged that by the covenants in the mortgage-deed dated June 14, 1922, a usufructuary mortgage was created on the mortgagor's interest in Mauza Bahaldih, and by the attornment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or enforcement of the personal covenant to pay the mortgage money when the mortgagor has bound himself to repay the same is governed by Art. 116 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where he is not secured in his possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Art. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security or possession and not from the date when the mortgage money is repayable : Unichaman v. Ahmed. (I.L.R. 21 Mad. 242) Assuming therefore that by the two deeds the mortgagees were placed in possession of the right to recover royalty in respect of Mauza Bahaldih, and that the sale of that property in enforcement of the decree of a Civil Court constituted deprivation of the security or disturbance of their possession by the creditors of the mortgagor, dispossession having taken place in 1937 the suit filed on July 12, 1946, regarded as one to enforce the claim to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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