# MANIMALA DEVI v. INDU BALA DEBYA & ORS

- **Citation:** [1964] 5 S.C.R. 635
- **Court:** Supreme Court of India
- **Decided:** 1963-12-03
- **Case number:** Civil Appeal No. 560 of 1960
- **Bench:** K. Subba Rao, M. Hidayatullah, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manimala-devi-v-indu-bala-debya-ors-3041
- **Pages:** 12

## Headnote

Limitation Act (IX of 1908), s. 20 and Art. 116-Person liable
to pay debt if covers mortgagor after assignment of his interest--
Transfer of Property Act (IV of 1882), s. 68-Nature of right conferred.
One Rajkumar Singh was the proprietor of three properties
A, B and C.
He borrowed a loan from Rabindra Nath and mortgaged properties A and B and by the deed of mortgage undertook
personal liability to pay the dues and agreed that in default of
payment by the due date the mortgagee do recover his dues by sale
of properties A, B and C. He created a second mortgage to
secure another sum borrowed from Sasindra Nath and Indra Nath
stipulating that he would repay the loan on or before a fixed
date, and further stipulating that the mortgagees may
receive
royalty from the terms of property C.
Five years later he assigned his interest in property A and about
three months thereafter he assigned his interest in property B.
Subsequent to this assignment an endorsement of part payment
was recorded on the first mortgage deed. The mortgagor's rights
title and interest in property C were sold at a court auction and the
purchaser took possession of that property. But before this date
the mortgagor had made another part payment and an endorsement was made to this effect on the mortgage bond. Sometime
later the appellant obtained assignments of the rights of the mortgagees under the mortgage deeds and filed a suit for a decree for
enforcement of the two mortgages by sale of the
mortgage
properties. This suit was filed more than twelve years after the
date on which the mortgage amounts became payable .
The trial court rejecting the pleas of limitation raised by the
defendants decreed the suit. On appeal by the fourth defendant
the High Court reversed the decree and dismissed the suit.
Held: (i) The High Court was in error in holding that the
mortgagor's interest in properties A & B only was mortgaged.
(iz) A mortgagor whose interest in the equity of redemption is
transferred by assignment sale or otherwise to another person is
not a "person liable to pay the debt" within the meaning of s. 20
of the Limitation Act. Part payment in the mortgagor after
transfer or assignment of his interest in the mortgaged property
will not therefore extend the period of limitation under s. 20 of the
Limitation Act.
Pavai v. Palanivela Goundan,I.L.R. [1940] Mad. 872.
1963
December 3
636
SUPREME COURT REPORTS
[1964]
1963
(iii) The right conferred by s. 68 of the Transfer of Property
Act is not a right to enforce the mortgage but a right to sue for
Manimala Devi the mortgage money on the personal covenant or tp claim compenv
sation when the mortgagee is deprived of his security. A suit
·
for enforcement of the personal covenant in such a case is governlndubala Debya ed by Art. 116 of the Limitation Act, 1908 and a suit for enforce-
& others
ment of a claim for compensation is governed by art. 120 of
the Act.
Shah J.
Unichaman v. Ahmed, I.L.R. 21 Mad. 242.

## Text

•
•
•
5 S.C.R .
SUPREME COURT REPORTS
MANIMALA DEVI
v.
INDU BALA DEBYA & ORS.
635
(K. SUBBA RAO, M. HIDAYATULLAH AND J.C. SHAH, JJ.)
Limitation Act (IX of 1908), s. 20 and Art. 116-Person liable
to pay debt if covers mortgagor after assignment of his interest--
Transfer of Property Act (IV of 1882), s. 68-Nature of right conferred.
One Rajkumar Singh was the proprietor of three properties
A, B and C.
He borrowed a loan from Rabindra Nath and mortgaged properties A and B and by the deed of mortgage undertook
personal liability to pay the dues and agreed that in default of
payment by the due date the mortgagee do recover his dues by sale
of properties A, B and C. He created a second mortgage to
secure another sum borrowed from Sasindra Nath and Indra Nath
stipulating that he would repay the loan on or before a fixed
date, and further stipulating that the mortgagees may
receive
royalty from the terms of property C.
Five years later he assigned his interest in property A and about
three months thereafter he assigned his interest in property B.
Subsequent to this assignment an endorsement of part payment
was recorded on the first mortgage deed. The mortgagor's rights
title and interest in property C were sold at a court auction and the
purchaser took possession of that property. But before this date
the mortgagor had made another part payment and an endorsement was made to this effect on the mortgage bond. Sometime
later the appellant obtained assignments of the rights of the mortgagees under the mortgage deeds and filed a suit for a decree for
enforcement of the two mortgages by sale of the
mortgage
properties. This suit was filed more than twelve years after the
date on which the mortgage amounts became payable .
The trial court rejecting the pleas of limitation raised by the
defendants decreed the suit. On appeal by the fourth defendant
the High Court reversed the decree and dismissed the suit.
Held: (i) The High Court was in error in holding that the
mortgagor's interest in properties A & B only was mortgaged.
(iz) A mortgagor whose interest in the equity of redemption is
transferred by assignment sale or otherwise to another person is
not a "person liable to pay the debt" within the meaning of s. 20
of the Limitation Act. Part payment in the mortgagor after
transfer or assignment of his interest in the mortgaged property
will not therefore extend the period of limitation under s. 20 of the
Limitation Act.
Pavai v. Palanivela Goundan,I.L.R. [1940] Mad. 872.
1963
December 3
636
SUPREME COURT REPORTS
[1964]
1963
(iii) The right conferred by s. 68 of the Transfer of Property
Act is not a right to enforce the mortgage but a right to sue for
Manimala Devi the mortgage money on the personal covenant or tp claim compenv
sation when the mortgagee is deprived of his security. A suit
·
for enforcement of the personal covenant in such a case is governlndubala Debya ed by Art. 116 of the Limitation Act, 1908 and a suit for enforce-
& others
ment of a claim for compensation is governed by art. 120 of
the Act.
Shah J.
Unichaman v. Ahmed, I.L.R. 21 Mad. 242.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
560 of 1960.
Appeal from the judgment and decree dated
July 18, 1955, of the Patna High Court in Appeal
from original decree No. 500 of 1947.
S.C. Agarwal and D.P. Singh, for the appellant.
P.K. Ghosh, for respondent No. l. ·
December 3, 1963. 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. 16 of Mauza Bansjora,
eight annas share in Mauza Simitanr and certain
interest in Mauza Bahaldih all in District Manbhum.
The mortgagor had leased 200 bighas of coal-bearing
land out of his holding in Mauza Bahaldih to certain
lessees for an annual royalty of Rs. 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. On June 14, 1922, the mortgagor
borrowed Rs. 5, 500 from one Rabindra Nath
Chakravarty and executed a deed of mortgage whereby
he agreed personally to repay the amount, and encumbered his share in Mauzas Bansjora and Simitanr
for repayment of the amount borrowed with interest
at the rate 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. 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
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5 S.C.R.
SUPREME COURT REPORTS
637
of Aswin. By another deed dated August 27, 1922,
1963
the mortgagor created a mortgage in favour of Sasi-
-
ndra Nath Chakravarty and Indra Nath Chakravarty Manimala Devi
to secure payment of Rs. 5,500 advanced to him
v.
and interest thereon. The covenants of this mortgage Indubala Debya
deed were substantially the same as the covenants
& others
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 Bahaldib. 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 Mauza
Bahaldih was sold on January 16, 1937, and after the
sale was confirmed, possession of Mauza Bahaldih
was taken by the auction-purchaser on April 7, 1937.
By two deeds dated June 18, 1946, Manimala Devithe 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. 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.
The suit was filed more than twelve years after
the date on which the mortgage amount became
payable, and prima facie, it was barred by the law
of limitation. But the plaintiff sought to bring the
claim within limitation, relying upon certain part
payments towards the mortgage dues made by the
mortgagor. On the deed dated June 14, 1922, was
recorded an endorsement dated April 1, 1937, relating
to payment of Rs. 600 as interest which was signed
by the mortgagor. On the mortgage-deed dated
Shah J.
638
SUPREME COURT REPORTS
[1964]
•
1963
August 27, 1922, there was recorded
an endor-
--
sement dated August 16, 1934, of payment of Rs. 100
Manimala .Devi which also was signed by the mortgagor. The plaintiff
v.
relied
upon part payments
evidenced by these
lndubala Debya endorsements to extend the period of limitation in
& others
respect of the two mortgage claims.
Shah J.
The trial Judge rejected the defence raised by the
contesting defendants and held that the suit in respect
of the first mortgage was not barred by the law of
limitation because the mortgage "was partly simple
and partly usufructuary" and even though the plaintiff
could not rely upon part payment of principal or
interest to extend the period of limitation for the suit,
she could still maintain the suit relying upon the
dispossession of the mortgagee on April 7, 1937, by
the auction-purchaser who purchased the mortgagor's
rights in Bahaldih lands at the Court auction and that
the suit to enforce that mortgage was accordingly
within limitation. 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.
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
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5 S.C.R.
SUPREME COURT REPORTS
639
one of the mortgaged properties, the mortgagor
1963
having lost his interest in Mauzas Bansjora, Simitanr
and Bahaldih prior to the payment of Rs. 600 by Manimala Devi
the mortgagor on April 1, 1937, as evidenced by the
v.
endorsement on the first mortgage deed, the plaintiff's Indubala Debya
suit to enforce the mortgage dated August 27, 1922,
& others
was barred by limitation. The plaintiff has appealed
to this Court with certificate granted by the High
Shah J.
Court.
The first question which falls to be considered
is whether Mauza Bahaldih was mortgaged under the
two mortgage-deeds. The mortgagor had shortly after
the two mortgage-deeds transfered his interest in
Mauzas Bansjora and Simitanr, and for reasons which
we will presently set out, the mortgagor cannot, by
making part payments, seek to extend the period
of limitation against his assignee after he has lost
his interest in the property mortgaged. The two
part payments dated August 16, 1934, and April 1,
1937, could operate to extend the period of limitation if the mortgagor continued to remain on those
dates owner of the mortgaged property or part thereof.
The plaintiff could therefore avail of the extension of
the period of limitation by part payments only if the
mortgagor's interest in Mauza Bahaldih stood mortgaged at the dates of those part payments, for the
mortgagor's interest in Mauzas Bansjora and Simitanr
was assigned to strangers many years before those part
payments were made.
The terms of the two mortgage-deeds are substantially the same and such differences as there are in the
covenants have no bearing on the questions to be
decided in this appeal. We will therefore set out
the material recitals and clauses in the mortgage-deed
dated June 14, 1922. In the preamble clause it was
recited that Tauzi No. 16 of collectorate and district
Mandhum constitutes the zamindari interest and that
on the death of his late father, the mortgagor acquire
the said zamindari and that he was entitled to transfer,
encumber or sell the whole property included within
the said Tauzi No. 16 at his free will. By paragraph 4
640
SlJPREME COURT REPORTS
[1964]
1963
the mortgagor undertook to pay interest at the rate of
.
. Rs. 1/8/- (one rupee eight annas) per cent per mensem
. Mammala Devz on the amount of Rs. 5,500 borrowed by him. In
v.
paragraph 5 it was stated that it was not possible for
Indubala Debya the mortgagor to pay interest every year on the amount
& others
borrowed by him and accordingly he had agreed
that the tenants of the coal fields in Mauza Bahaldih with
Shah J.
whom he had settled the coal mines in the zamindari shall continue to pay to the mortgagee Rs. 1,000
on account of one of the instalments for rent, minimum
royalty and commission, due to the mortgagor according to the terms of the contracts. 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. 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 speci·
fied 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 encumb·
ered to any person and that he was in peaceful
possession of the mortgaged property described in
Sch. (ka) viz., Mauza Bahaldih and that he was peacefully realising the rents. By paragraph 14 the mortgagor agreed that the properties specified and described
in Sch. (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
5 S.C.R.
SUPREME COURT REPORTS
641
"should any cause of action arise", the mortgagee
1963
"shall be competent to realise the full amount due
-
to" him "together with interest and costs by selling Manimala Devi
the said properties in Sch. (ka) and (kha) by·action",
v.
and that should the full amount be not realised the Induba/a Debya
mortgagee will be competent to realise the amount
& others
from other moveable and immoveable properties
belonging to the mortgagor. By paragraph 13 the
Shah J.
mortgagor agreed to pay the principal and the interest
due on or after April 14, 1925.
The mortgagor admitted receipt under each of
the two deeds the amount of Rs. 5,500 advanced
to him by the mortgagees and agreed to pay interest
at the rate of Rs. I /8/- per cent per inensem.
He
had also made an arrangement by which the mortgagee
was to recover the interest on the mortgage debt
ont of the instalments of Rs. 1,000 as royalty in respect
of Mauza Bahaldih. There was a covenant that in
the event of the mortgagee being unable to recover
royalty from the tenants the mortgagor would make
good the same. Again by paragraph 13 in each of
the two deeds there was a covenant for payment of
the amount of the principal and interest personally
on or after April 14, 1925. A distinction was made in
paragraphs 12 and 14 between Mauzas Bansjora
and Simitanr .on the one hand and Mauza Bahaldih
on the other. By paragraph 12 the mortgagor had
undertaken not to transfer or assign Mauzas Bansjora and Simitanr to any person, and had merely assured the mortgagee that he had not assigned the rightsin Manza Bahaldih till the date of mortgage by way
of any encumberance to any other person.
But
that distinction would, for the purpose of ascertaining
the true nature of the document, be immaterial, for
even in the absence of a covenant not to assign the
mortgagor's interest, so Jong as the mortgage remained outstanding, the transfer made by the mortgagor of Mauzas Bansjora and Simitanr would be
subject to the mortgage. In paragraph 14 it was
state~ that as security for the realisation of the principal
and mterest, Mauzas Bansjora and Simitanr were. to
'-.
1/SCI/64-41
•
642
SUPREME COURT REPORTS
[1964]
1963
stand mortgaged. That may prima facie suggest
that those two Mauzas alone were mortgaged, but
Manimala Devi the mortgagor had in the same paragraph agreed that
v.
should "any cause of action arise", the mortgagee shall
lndubala Debya be competent to
realise
the full amount due
& others
to him together with interest and costs by selling
Mauzas Bansjora, Simitanr and Bahaldih. The mortShah J.
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 mortgage-deeds. The later
mortgage was executed on August 27, 1922, and the
amount due thereunder was payable on April 14,
1925. On August 16, 1934, an amount of Rs. JOO/-
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 Bahaldih was not extinguished.
Under Art. 132 of the Limitation Act, Sch. I, 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. The ,
suit filed by the plaintiff was for enfor~ement of payment of money charged upon immoveable property and
money sued for on the later mortgage had become
due on April 14, 1925. Bys. 20 of the Limitation Act
where payment on account of a debt or of interest
on a legacy is made before the expiration of the
prescribed period, by the person liable to pay the debt,
or by his duly authorised agent, a fresh period of
limitation will be computed from the time when the
payment was made. · The mortgagor had parted with
his interest in Mauza Bansjora on May 17, 1927,
and in Mauza Simitanr on October 2, 1927, and a
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5S.C.R.
SUPREME COURT REPORTS
643
mortgagor whose interest in the equity of redemption
1963
is transferred by assignment, sale or otherwise to another person, is not a "person liable to pay the debt" Manimala Devi
within the meaning of s. 20 of the limitation Act.
v.
Part payment made by him towards principal or Indubala Debya
interest therefore does not extend the period of limita-
& others
tion for enforcement of the mortgage against the
transferee of the equity of redemption. If by transfer
Shah J.
or assignment of his interest the mortgagor has lost
all his interest in the mortgaged property, part payment
will not extend the period of limitation, for at the
date of payment he is not "the person liable to pay"
the mortgage debt. The High Court of Madras
was right in holding in Pavavi v. Palanivela Goudan (t)
-
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. But
the mortgagor's interest in Mauza Bahaldih subsisted
on the date of payment by him of Rs. 100 towards
the principal and interest, and such payment having
been made within twelve years from April 14, 1925,
the plaintiff's claim to enforce the mortgage dated
August 27, 1922, was at the date of the suit not barred
by limitation .
.
The amount due under the mortgage dated
June 14, 1922, was repayable on April 14, 1925,
and on April l, 1937, Rs. 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 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 2,
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
(I) I.L.R. [I 940) Mad. 872.
644
SUPREME COURT REPORTS
'[1964]
1963
payment made after the mortgagor lost all his interest
in the property mortgaged. The plaintiff has not
Manimala Devi relied upon any other part payment in respect of the
v.
first mortgage before the mortgagor's interest in the
1ndubala Debya mortgaged properties was transferred, to extend the
& others
period of limitation for a suit to enforce the mortgage.
Shah J.
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 made pursuant to paragraph 7 of the mortgage,
the mortgagor must be deemed to be in possession
till the mortgagor's interest in that property was
sold, and under s. 68(1) (b) of the Transfer of Property
Act dispossession of the mortgagee from Mauza
Bahaldih by virtue of the sale under the money
decree passed against the mortgagor, a cause of action
accrued to the mortgagee to enforce the mortgage
and the plaintiff's suit filed within twelve years from
the date of dispossession was within time. A suit
to enforce a mortgage is governed by Art.
132 of
the limitation Act and has to be filed within twelve
years from the date on which the money sued for
became due, unless the period of limitation so
prescribed is extended in the manner provided by Part
III of the limitation Act.
Dispossession of the
mortgagee is not one of the grounds prescribed by
the Act for extension of the time prescribed for
filing a suit.
Section 68 of the Transfer of Property Act confers
a right upon the mortgagee to sue for the mortgage
money in four different classes of cases and no others.
These classes are-
(a) where the mortgagor binds himself to repay
the mortgage money :
(b) where, by any cause other than the wrongful
act or default of the mortgagor or mortgagee,
the mortgaged property is wholly or partially
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5 S.C.R.
SUPREME COURT REPORTS
645
destroyed or the security is rendered insufficient within the meaning of section 66,
1963
and the mortgagee has given the mortgagor Manimala Devi
a reasonable opportunity of providing further
v.
security enough to render the whole security lnduba/a Debya
sufficient, and the mortgagor has failed to
& others
do so
(c) where the mortgagee is deprived of the
whole or part of his security by or in
consequence of the wrongful act or default
of the mortgagor ;
( d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor
fails to deliver the same to him, or to secure
the possession thereof to him without disturbance by the mortgagor or any person
claiming under a title superior to that of
the mortgagor."
The section does not deal with the period of
limitation for filing a suit, or extension of the period
prescribed by the Limitation Act for filing a suit.
The right conferred by s. 68 is again not a right to
enforce the mortgage but a right to sue for the mortgage
money on the personal covenant or to claim compensation when the mortgagee is deprived of his security.
A suit for 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 oflimitation 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. 0>
Assuming therefore that
{I) l.L.R. 21 Mad. 242
Shah/.
646
SUPREME COlJRT REPORTS
[1964]
1963
by the two deeds the mortgagees were placed in
possession of the right to recover royalty in respect
Manimala Devi of Mauza Bahaldih, and that the sale of that property
v.
in enforcement of the decree of a Civil Court constiIndubala Debya tuted deprivation of the security or disturbance of
& others
their possession by the creditors of the mortgagor,
Shah J.
dispossession having taken place in 1937 the suit
filed on July 12, 1946, regarded as one to enforce
the claim to recover the mortgage money under
s. 68 of the Transfer of Property Act was barred by the
law of limitation.
·
This appeal will therefore be partially allowed.
The decree passed by the High Court will be set
aside and there will be a decree in favour of the plaintiff
only in respect of the mortgage dated August 27, 1922.
The trial Court will draw up an appropriate decree
in that behalf. The plaintiff's appeal will fail in
respect of the mortgage dated June 14, 1922. The
plaintiff will pay the costs of the fourth defendant
who alone has defended this appeal. The plaintiff
\Vill be entitled to her costs in respect of the mortgage
dated August 27, 1922, from the original mortgagor's
heirs and the transferees-in-interest of the property
which was the subject-matter of the said mortgage.
Appeal partly allowed.
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