Niloomal Pramanick And Ors. vs Kamini Koomar Basu on 31 August, 1891

Calcutta High Court
Niloomal Pramanick And Ors. vs Kamini Koomar Basu on 31 August, 1891
Equivalent citations: (1893) ILR 20 Cal 269
Author: P A Banerjee
Bench: Pigot, Banerjee


Pigot and Banerjee, JJ.

1. This was a suit brought by the plaintiffs for possession of some land on the allegation that the same was mortgaged by the defendant’s father on the 20th Assar 1256 (corresponding with some time in July 1849) to the predecessor of the plaintiffs by way of conditional sale by a deed which was drawn up as a deed of out-and-out sale, that the mortgagor made payments on various dates down to 1282 or 1875, that foreclosure proceedings were thereafter instituted and the mortgage foreclosed in Joist 1284 or May 1877, and that the plaintiffs were consequently entitled to possession. The defendant pleaded limitation, denied the mortgarge, and the regularity of the foreclosure proceedings, and raised other objections not necessary to be considered now.

2. The first Court found for the plaintiffs and gave them a decree for possession in default of the defendant to pay off the mortgage debt with interest within six months from the date of the decree.

3. On appeal by the defendant the Lower Appellate Court has reversed that decree and dismissed the suit on the ground that the foreclosure proceedings under Regulation XVII of 1806 were irregular and invalid.

4. In second appeal it is contended for the plaintiffs that the Lower Appellate Court was wrong in dismissing the suit altogether, and that if the foreclosure proceedings under Regulation XVII of 1806 were bad, the plaintiffs were still entitled to a decree for foreclosure under the provisions of the Transfer of Property Act.

5. It is unnecessary to consider that question, as the objection urged on behalf of the respondent, that the suit is barred by limitation, seems to be a fatal one.

6. It has been held by a Full Bench of this Court, in the case of Girwar Singh v. Thakur Narain Singh I.L.R. 14 Cal. 730, that Article 147 of the second schedule of the Limitation Act (XV of 1877) applies only to those cases in which the mortgagee is entitled to the alternative remedies of foreclosure and sale. Now the mortgage in this case being by conditional sale the mortgagee is not entitled to the remedy by sale [see Transfer of Property Act, Section 67, Clause (a)]. That being so, Article 147 of the Limitation Act does not apply to this case. The only other provisions of the Limitation Act that can possibly be referred to as applying to a case like this are Articles 132 and 135. Now Article 135 cannot apply to this case, as the mortgagee did not become entitled to possession after foreclosure proceedings under Regulation XVII of 1806, it being found by the Lower Appellate Court that the proceedings did not properly take place, and as the mortgage deed contains no provisions as to the mortgagee taking possession, the only provision applicable to this case is, we think, Article 132. A comparison of the language of Article 132 of the present Act which speaks of suits to enforce payment of money, &c., with that of the corresponding article of the Limitation Act of 1871, and the fact that the first decree in a foreclosure suit under the Transfer of Property Act is one that in the first place directs the mortgagor to pay off the mortgage money, go to support this view, and if Article 132 applies, the suit is clearly barred, as the deed fixes no time of payment and the suit was brought more than twelve years after the date of the mortgage deed, and also more than twelve years after the date of the alleged last payment to the mortgagee, which was in 1875.

7. We must therefore hold that the suit has been rightly dismissed, and this appeal must be dismissed with costs.

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