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Bombay High Court
Gulam Hussein Tyaballi vs Mahamadally Ibrahimji on 24 February, 1910
Equivalent citations: (1910) 12 BOMLR 531
Author: K Basil Scott
Bench: B Scott, Kt., Batchelor


Basil Scott, Kt., C.J.

1. The plaintiff originally sued on the 18th of April 1899 to recover Rs. 1999 due under a mortgage-deed dated the 18th of April 1877. He claimed to recover the amount in question by sale of the mortgaged property and any balance from the remaining non-hypothicated property of the first defendant and of the deceased mortgagor.

2. A decree was passed in his favour against the mortgaged property alone. The amount realised by the sale of the mortgaged property was insufficient to satisfy the decree by Rs. 837, and the plaintiff applied under Section 90 of the Transfer of Property Act for a further decree against the other property of the mortgagor.

3. The Subordinate Judge found that the claim was time-barred.

4. An appeal was then preferred to the District Court on the ground that a sum of Rs. 200 was paid by the mortgagors on account of interest on the mortgage-debt, and that therefore the plaintiff’s present claim was not barred by limitation, and that the plaintiff should have been allowed an opportunity of proving the payment of interest as. alleged by him. The Acting District Judge framed the following issues:-

(1) Whether the plaintiff is entitled to adduce evidence to prove the payment of interest ?

(2) Whether he is entitled to a further decree under Section 90 of the Transfer of Property Act ?

5. He decided both the issues against the plaintiff. He says “what the plaintiff seeks now to prove is that the payment of Rs. 200 as interest was made within six years of the suit. This fact is stated to be mentioned in the original plaint. But the plaint merely states that Rs. 200 were received and does not give any date or the account on which they were paid. Hence it will appear that the present application contains two distinct allegations which are not found in the original plaint, first, that Rs. 200 was paid within six years of the suit, and, secondly, that it was paid as interest.”

6. We are of opinion that the District Judge came to the right conclusion upon the facts stated by him.

7. Section 43 of the Code of Civil Procedure of 1882 provides that: ” A person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies, but if he omits (except with the leave of the Court) to sue for any of such remedies he shall not afterwards sue for the remedy so omitted “. If therefore he wished to make out a case that he was entitled to a decree against the mortgagor personally or against his un-hypothicated property in the event of the sale-r 63 proceeds of the mortgaged property being insufficient to pay the mortgage-debt, he was bound to put forward in his plaint the allegations which if established would entitle him to that relief. The mortgage being a mortgage of the 18th of April 1877 ‘ and the suit being a suit of 1899, it is clear that the plaintiff’s right to a personal decree would be barred unless he could allege some ground for exemption from the law of limitation.

8. Section 50 of the Code of 1882 provides that ” if the cause of action arose beyond the period ordinarily allowed by any law for instituting the suit, the plaint must show the ground upon which exemption from such law is claimed.” The plaint did not show any ground for exemption from the law of limitation and therefore if the plaintiff is bound by what is stated in his plaint he cannot obtain the relief which he now seeks. In the case of Damodar v. Vyanku (1906) I.L.R. 31 m. 244, 9 Bom L.R. 119 the Court said : “It is clear from the words of Section 90 of the Transfer of Property Act that a direction for personal payment by the ‘mortgagor should be in a supplemental decree to be” passed when the’ net proceeds should be found to be insufficient. The original decree should merely have reserved to the plaintiff liberty to apply, for decree under Section 90.” This assumes; that the plaint indicated that the debt sued on was legally recoverable at” the date of suit.

9. This view is supported by the form of plaint for a mortgage suit, No. 109, in the Schedule to the Code of 1882, which shows that there should be a prayer in the original plaint for payment to the plaintiff of the amount of the deficiency if the sale-proceeds should not be sufficient for payment of the full amount.

10. The conclusion, therefore, to which we have come is that the plaintiff cannot be allowed at this stage of the suit to bring forward for the first time allegations which it is necessary to prove in order to show that he is entitled to a further decree against the defendant personally.

11. Our attention has been called to the decision in Rama Dattu v. Sakharam Lingu (1909) 11 Bom L.R. 1127. That was a case in which the plaintiff in his plaint had claimed’ a personal decree although he had not at the original hearing led evidence to prove a subsisting personal obligation. It does not appear’ that any question of limitation arose which should have been confessed and avoided in the plaint.

12. We affirm the decision of the lower Court and dismiss the appeal with costs. Decree confirmed.

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