JUDGMENT
M.P. Varma, J.
1. The second ap-peal has been referred to by S. All Ah-mad, J., after formulating the following three questions for their being answered as an authority by a Bench of this Court :
“(1) In cases where a mortgagee does not get possession of the mortgaged property, then as to whether he can maintain a suit under Section 67 of the T. P. Act for the sale of the mortgaged property?
(2) In case it is held that no decree for sale of immovable property can be granted then as to whether the suit can be decreed for money under Section 68 of the T. P. Act or for possession under the Contract Act? Although he has prayed for only a decree for sale of the mortgaged property
(3) Whether the law explained in the case of Jamna Das Bisesar Lal v. Mani Ram Halwai (AIR 1936 Patna 439) is a good law in view of the decision in the case of Harnath Singh v. Maiya Ambika Devi (AIR 1941 Patna 301)?”
2. The brief facts giving rise to the present appeal by the defendants are that the plaintiff respondent had taken certain properties in mortgage from the defendants who had executed two mortgage deeds (Exts. 1 and 1/a) dated 15-3-62. The two deeds contain identical covenants. They provided that the defendants had agreed to put the plaintiff in khas possession and the plaintiff was to utilise the usufructs of the properties in lieu of interest.
3. The defendants had also agreed to pay the principal amount. According to
the plaintiff, the defendants never delivered possession of the mortgaged lands, in spite of demands nor paid the principal money or interest. It was the further case of the plaintiff that the mortgages were legal and anomalous and, therefore after the expiry of the stipulated date in the deeds, he was entitled to sue for realisation of the mortgage money with interest and on failure of the defendants to pay the amount within the time fixed by the court, there was further stipulation for the sale of the mortgaged property.
4. The case of the defendants, on the other hand, was that the mortgage was a usufructuary mortgage in so far as both the deeds (Exts. 1 and I/a) are concerned and they had put the plaintiff in possession of the mortgaged property, whereafter, the plaintiff gave the mortgaged land in batai to the defendants and they were dividing the crops with the plaintiff and since the plaintiff made demand of the mortgage money which the defendants were unable to pay, the plaintiff brought the suit for realisation of the entire mortgage money with interest out of sheer annoyance.
5. The trial court dismissed the suit holding that the mortgage was a usufructuary one and the mortgagee did not come in possession of the mortgaged land and hence the plaintiff could not sue for recovery of the mortgage monev by putting the property to sale. The appellate court, on appeal by the plaintiff, did hold that the mortgage deeds. i.e., Exts. 1 and 1/a, were anomalous mortgages and, therefore, the plaintiff was entitled to recovery the mortgage money with interest at the rate of 9 per centum per annum as claimed in the suit by sale of the mortgaged property. The appellate court thereby decreed the plaintiff’s claim against which the appeal has been preferred.
6. At the final hearing of the appeal before the learned single Judge, the three questions referred to above were raised by the appellants which fall for our determination. As regards the first question as to whether a mortgagee, who does not get possession of the mortgaged property, can maintain a suit under Section 67 of the t. P. Act (hereinafter to be referred to the ‘Act’) for sale of the mortgaged property, it has to be noted that Section 67 of the Act deals with the right of a mortgagee to
sue for foreclosure or sale of the mortgaged property. Section 67 of the Act also provides that a mortgagee has, at any time after the mortgage money became due to him, a right to obtain from the court a decree that the property be sold. This necessarily means a right to recover mortgage money through a decree which is to be satisfied by sale of the mortgaged property. Under the law there is no change in the position even after amendment of the Act in 1929 because the combination of simple and usufructuary mortgage is now treated as an anomalous mortgage, The two mortgage deeds under reference contain covenants of hypothecation of property. Of course there is also a personal covenant to pay and hence the mortgagee gets a right to sue for sale of the mortgaged property. In my view, a suit for sale of the mortgaged property is permissible and, therefore, the first question is answered accordingly.
7. In my view, although I have held above that a suit for sale of mortgaged property is permissible, but since I am going to hold that the plaintiff is, entitled to a money decree, the second question formulated does not arise for consideration in this case.
8. As regards the third question, whether the law explained in the case of Jamna Das Bisesar Lal v. Mani Ram Halwai (AIR 1936 Patna 439) is a good law in view of the Bench decision in the case of Harnath Singh v. Maiya Ambika Devi (AIR 1941 Patna 301), on a reading of the judgment in the case of Jamna Das (supra), it appears that the rights and liabilities of the mortgagee were determined in accordance with law as it existed prior to amendment, in the year 1929, of the Act because the usufructuary mortgage in that case was created in the year 1915. Hence, the rights of the mortgagee, it appears, were determined in accordance with the law then existing, and not in accordance with the amended law. I, therefore, do not find any scope for holding that there is any conflict in the legal position by reference to the case of Harnath Singh (supra).
9. Now coming to the facts of the present case, in my opinion, it clearly falls within the scope of Section 68 of the Act, which provides for a mortgagee to sue for recovery of mortgage money. It would be relevant to mention here that
the plaintiff prayed for the following reliefs in paragraph 9 of the plaint, which reads as follows :
“9. That the plaintiff begs to pray for the following reliefs:–
(a) That a mortgage decree for Rupees 3,094 may be passed in favour of the plaintiff against the defendants with interest pendents lite and future till realisation at the rate of Rs. 9 p.c. p.a. with all costs, etc. and that a time may be fixed in the decree for payment of the amount due and that in default of the payment within the time allowed, the dues of the plaintiff may be satisfied by sale of the mortgaged lands as described in Schedule B below.
(b) That in case the proceeds of the sale are found to be insufficient to satisfy all dues of the plaintiff, then a liberty may be reserved to the plaintiff to apply for a personal decree for the balance against the defendants with costs according to Order 34, Rule 6, C.P.C.
(c) That the plaintiff may be awarded any other reliefs fit and proper in the eye of law.”
Thus it is clear that the plaintiff claimed relief for a money decree for the sum referred to above with interest thereon and it was clearly stipulated that in case the amount is not paid within a certain time fixed by the court, the dues of the plaintiff may be satisfied by the sale of the mortgaged property as described in the schedule of the plaint. So it is clear that basically, it appears to be a suit for money decree. Section 68 (1) (d) of the Act also provides that where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same, the mortgagee has right to sue for money decree. The amended definition of the term ‘usufructuary mortgage’, which came into effect in 1929, does include within its ambit not only where the mortgagor never delivered possession but also where he has expressly or by implication bound himself to deliver possession of the mortgaged property to the mortgagee. So far as the instant case is concerned, there is no absolute covenant in the mortgage deeds (Exts. 1 and 1/a) to pay and, in substance, the deeds are usufructuary mortgage. There appears to be a dominant intention to put the mortgagee in possession of the mortgaged lands in the instant case. And, if it is so held–and I do hold–
that it was a case of usufructuary mortgage, I see no difficulty in the mortgagee suing for mortgage money, in case the mortgagor fails to deliver possession of the mortgaged property. And, to this effect, I find, there is averment in paragraph 5 of the plaint also.
10. In the result, the appeal fails and it is dismissed but without cost and the judgment of the lower Appellate Court is upheld on the grounds mentioned above.
B.P. Jha, J.
11. I agree with my learned Brother’s judgment. In the present case the main prayer was to pass a money decree as required under Section 68 of the T. P. Act (hereinafter to be referred to as the ‘Act’) with interest. In the prayer portion it was mentioned that if the mortgagor failed to pay the decretal amount within the time fixed by the court in the decree then, alternatively, it was prayed that the mortgaged lands would be put to sale. Therefore, the suit was essentially for passing a money decree. The lower Appellate Court erred in passing a decree for sale which is contrary to the prayer portion of the plaint. My learned Brother is correct in passing a money decree in favour of the plaintiff on the basis of the prayer made in the plaint as well as on the basis of the averment made in paragraph 5 of the plaint. In that paragraph of the plaint it was specifically stated that the due date of repayment of the mortgage money was in Chait, 1370 F. S., and the defendants did not pay the principal amount on the due date and as such the suit was filed for realisation of the money advanced bv the plaintiff.
12. The mortgagee can bring a suit for mortgage money or for possession. In the present case, the mortgagors did not deliver possession nor paid the mortgage money to the plaintiff. The case of the defendants to the effect that they were bataidars of the plaintiff was not accepted as correct by the lower Appellate Court. It is correct that the mortgagee is not entitled to bring a suit for sale of the mortgaged lands under Section 67 of the Act as it is prohibited under Section 67 (a) of the Act. So far as the present suit is concerned, it is maintainable under Section 68 (1) (d) of the Act,
13. On a perusal of the stipulations made in the mortgage bonds (Exts. 1 and I/a), it is clear that it was a case of
usufructuary mortgage bond. I agree with my learned Brother that both the mortgage bonds (Exts. 1 and 1/a) are usufructuary mortgage bonds. In both the deeds, the stipulations are that the defendants will put the plaintiff in possession of the mortgaged lands. It was further stipulated therein that the plaintiff will be authorised to redeem the deeds in Chait, 1370 F. S. when the defendants agreed to pay the money. It was further stipulated in the mortgage bonds that in case the mortgagors did not pay the amount in the month of Chait, 1370 F.S.. the plaintiff shall remain in possession of the mortgaged property and enjoy the usufructs thereof in lieu of interest till redemption. It is, therefore, clear that both the deeds are usufructuary mortgage bonds. An identical case was considered by a Division Bench of this court in Harnath Singh v. Maiya Ambika Devi (AIR 1941 Patna 301). and it was held that the mortgage bond was an usufructuary mortgage bond. The terms of the mortgage bond in AIR 1941 Patna 301 (supra) are identical to the present mortgage bonds. I hold that the decision in AIR 1941 Patna 301 (supra) is a correct decision. I also agree with my learned Brother to the effect that so far as the present facts are concerned, the decision in Jamna Das Bisesar Lal v. Mani Ram Halwai (AIR 1936 Patna 439) does not apply as it was a case before the amendment of the Act in 1929. Moham-mad Noor, J. relied on a Full Bench decision of the Madras High Court in Marturu Subbamma v. Gadde Narayya (ILR 41 Mad 259) : (AIR 1919 Mad 1164). That case also related to the period prior to 1929 amendment. Before the 1929 amendment, if there was no delivery of possession of the mortgaged land then it was not an usufructuary mortgage. After 1929 amendment if the mortgagor binds himself expressly or impliedly to deliver possession, then it will also come within the purview of usufructuary mortgage bond. After 1929 amendment, so far as (1918) ILR 41 Mad 259 : (AIR 1919 Mad 1164) (supra) is concerned, it was no longer a good decision in view of the decision in Ayilavajjula Subbaraya Sarma v. Chilakapari Subramanyam (AIR 1952 Mad 856). Subba Rao J. as he then was, had specifically held that the decision in (1318) ILR 41 Mad 259: (AIR 1919 Mad 1164) (supra) will not be applicable to a period after 1929 amendment.
14. I, therefore, answer the first question and hold that under Section 67 of the Act the plaintiff is not entitled to bring a suit for sale of the mortgaged property. But the present suit will fall within the purview of Section 68 (1) (d) of the Act. We have, therefore, passed a money decree and a money decree is maintainable under Section 68 (1) (d) of the Act. I will also say that so far as the present case is concerned, the decision in AIR 1941 Patna 301 (supra) is a correct decision and the decision in AIR 1936 Patna 439 (supra) does not apply to the facts of the present case. So far as question No. 2 is concerned, the suit can be decreed for money under Section 68 of the Act as there is averment to this effect in paragraph 5 of the plaint as well as there is a specific prayer to this effect in paragraph 9 of the plaint. We, therefore, pass a decree for Rs. 2.800 (principal amount) plus pendente lite interest at the rate of 6 per centum per annum during the pendency of the suit and the appeal and till the amount is realised.
15. In the result, the appeal is dismissed but without costs and the decree of the lower Appellate Court is upheld with modification in respect of the nature of the decree as indicated above.