JUDGMENT
A.R. Tiwari, J.
1. The original defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 11-9-75 passed by the District Judge, Ujjain in Civil Regular Appeal No. 5-B/74 thereby sustaining the judgment and decree dated 12-2-74 passed by Second Civil Judge Class I, Ujjain in COS No. 26-B/73.
2. Briefly stated, the facts of the case are that the appellant No. 1 (Defendant No. 1) mortgaged the agricultural lands area 10 Bighas and 19 Biswas with respondent No. 1 on 10-6-69 for a consideration of Rs. 5,000/-. The appellant No. 2 (defendant No. 2) had stood surety for repayment of the mortgaged amount. The mortgage was a simple mortgage and the possession continued with appellant No. 1. The interest was to be paid @ Rs. 9.50 per cent per annum. The period of mortgage was three years and the repayment was to be made in three instalments falling due on 10-6-70, 10-6-71 and 10-6-72. The first two instalments were agreed to be of Rs. 1700/- each & the third instalment was agreed to be of Rs. 1,600/-. It was also agreed that the interest shall be paid each month and in case of default in payment of interest for two months, the plaintiff shall have the right to recover the entire mortgaged amount at once. The mortgage deed was registered on 10-6-69. The appellant No. 1 did not pay the amount. The appellant No. 2 also did not discharge his liability as a surety. The respondent-plaintiff, therefore, filed the suit on 1-7-72 for recovery of the mortgaged amount by sale of the mortgaged
property and also prayed for passing the personal decree. The appellants opposed the suit. One of the contentions was that the alleged mortgage-transaction was in contravention of Section 165 of the M.P. Land Revenue Code. Hence, the alleged liability was not enforceable under the law. The Trial Court upheld the contention with regard to contravention, but decreed the suit for Rs. 6,670.17 Paisa on the ground that the plaintiff-respondent was entitled to a simple money decree for the amount on the basis of personal covenant. The trial Court also negatived the plea of bar of limitation as the suit was filed within three years from 10-6-70 which was the date fixed for payment of the first instalment. Aggrieved, the appellant-original defendants filed the First Appeal where the fortune did not fluctuate yet undaunted by unsuccess in two Courts below, the appellants have filed this Second Appeal. The appeal was filed on 10-1-76 when unamended Section 100 of the Code of Civil Procedure was operative. The appeal was admitted on 10-2-76 and in view of the unamended position, no substantial question of law was framed at the time of admission.
3. The parties admitted that as the decree is a simple money decree and as such, the State of Madhya Pradesh is not a necessary party for disposal of this appeal.
4. I have heard the appellant Shri Rajendra
Kumar Sharma and Shri Habhajanka, learned
Counsel for the respondent.
5. At the time of arguments, Shri Sharma submitted that he is questioning the validity of the judgment and decree on the ground that the First Appellate Court erred in holding that the suit was filed within limitation. The question for consideration in this appeal is whether the aforesaid conclusion is sustainable?
6. The counsel for the respondents, on the other hand, submitted that the question is properly answered by the First Appellate Court and that the aforesaid question is one of fact and is not liable to be disturbed in the Second Appeal.
7. The appellant has placed reliance on AIR 1925 Nag 130, Omrao v. Ramadhar; and AIR 1939 Nag 27, Gulam Hussain v. Mir Jakirali.
8. As regards the merits of the matter, I find that the First Appellate Court upheld the approach of the trial Court and held that even where mortgage is invalid, personal covenant as regards debt
borrowed can be enforced. Reliance is placed on 1972 JLJ (SN) 72, Gwalior Commercial Cooperative Bank, Morar v. Mathuradas. In this decision, this Court has held as under :–
“The Courts below have lost sight of the fact that in every mortgage transaction, the primary consideration is the debt borrowed by the mortgagor from the mortgagee and it is only with a view to secure its repayment that mortgagor mortgages his property by way of security in favour of the mortgagees. The Courts below lost sight of the fact that if the mortgage deed is not registered as required by law the mortgagee does not lose his right to recover the debt from the mortgagor and a simple money decree is liable to be passed.”
x x x
9. It is, thus, clear that the two Courts below rightly passed the simple money decree on the basis of personal covenant about repayment of the debt. It is not disputed before me that primary consideration in such transactions is the debt borrowed and the mortgage is only by way of security in favour of the mortgagee. There is, thus, no legal hurdle in recovering the amount of debt.
10. As regards the question of limitation, the First Appellate Court noted that the amount was agreed to be paid through instalments and that the first instalment was payable only on 10-6-70. As such, the cause of action for recovery of debt can arise only on 10-6-70. The suit was filed on 1-7-1972 i.e. within a period of three years. The suit was thus held to be within limitation. The appellant contended before me that the cause of action should be held to run from the date of the mortgage-deed i.e. 10-6-69 and on that basis the suit should have been as barred by time. In my view, this contention is without any force. The Courts below rightly held that the cause of action could accrue only on 10-6-70. Apart from that, the conclusion about limitation is a finding of fact and is not open for interference in the Second Appeal.
11. In AIR 1986 SC 1509, Dudh Nath Pandey (dead by L.Rs.) v. Suresh Chandra Bhattasali (dead by L.Rs.), it is held as under :–
“The High Court in exercise of its power under Section 100 of the Civil P.C. cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the
First Appellate Court. The finding on the question of limitation recorded by the First Appellate Court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the High Court in the exercise of power under Section 100 of the Civil P.C.”
x x x
11.1. The aforesaid authorities, relied upon by the appellant Shri Sharma, are distinguishable on facts and do not apply to the present case in view of the default clause and provision of repayment by instalments. In view of this position, the date of deed becomes inconsequential and the date on which the first instalment fell due would be the relevant factor for computation of the limitation. The two Courts below have applied the correct facts and law. The contention is, thus, found to be inutile and futile. Even when we examine the question from different angle, i.e. the default clause, becoming operative on non-payment of interest for two months i.e. after 10-8-69, I find that the suit is within limitation even on this linchpin. The contention about bar of limitation is firstly without substance on appreciation of factual matrix and secondly is not entertainable in the Second Appeal in view of the decision of the Apex Court (supra). Admittedly limitation is three years.
12. I, therefore, find that the contention is devoid of substance.
13. The appellants also attempted to impugne the direction about interest. As stated in para 15 of the impugned judgment, this challenge was not made before the First Appellate Court Even otherwise, I find that the aforesaid contention lacks substance and the liability of interest is not excessive and is rightly imposed.
14. No other point is urged before me.
15. In the circumstances, I find that this appeal is devoid of merit and deserves the fate of dismissal.
16. Accordingly, I dismiss this appeal, but with no orders as to costs. Counsel’s fee for each side is, however, fixed as per the schedule, if certified.
17. A decree be drawn up accordingly.
18. Before parting with this appeal, I find it fit to mention that the appellant Shri Sharma submitted that talks of reasonable settlement
between the parties are in progress. If that is so, this judgment shall not fix any fetter and the parties shall be free to negotiate and arrive at ,a reasonable settlement and get the same certified in the Court below once it is so reached.
19. Records of the Courts below be now returned.