Ahilyabai & Ors. Vs. Shantabai (Dead) & Ors.
EmailAppeal: Civil Appeal No. 3770 of 1988
Petitioner: Ahilyabai & Ors.
Respondent: Shantabai (Dead) & Ors.
Apeal: Civil Appeal No. 3770 of 1988
Judges: M.B. SHAH & D.P. MOHAPATRA, JJ.
Date of Judgment: Oct 10, 2000
Head Note:
LIMITATION
Limitation Act, 1963
Article 61(a) – Owner mortgaging property on 10.7.33 for 5 years – Mortgagee to continue in possession – Having right to fore-close, if amount demanded and not paid – Till then possession on same terms and conditions – On death of mortgagee on 30.1.42, possession recovered by mortgagor – Suit for recovery of posses-sion by LR of mortgagee – Same decreed on 19.3.81 – Possession handed over to LR on 31.8.81 – Then suit for redemption and possession by mortgagor on 11.12.81 – If barred by time. Held that suit was in time. Suit decreed.
Held:
Article 61(a) of the Limitation Act, 1963 provides that a suit by mortgagor to redeem or recover possession of immovable property mortgaged is to be filed within a period of 30 years “when the right to redeem or recover possession accrues”. In the present case as the appellants were in possession from 1942 onwards till 31st August, 1981, there was no question of filing suit for recovering the possession of the mortgaged property. However, as the suit filed by the respondents in 1962 for recovering the possession was finally decreed in their favour and the possession was delivered to them, on 31.8.1981, the right to recover the possession accrued. Before that date, cause of action to recover the possession had not accrued. Therefore, it cannot be said that the suit filed by the present appellant on 11th December, 1981 was barred by period of limitation. (Para 4)
JUDGEMENT:
ORDER
1. This appeal is filed against the judgment and decree dated 26th March, 1985 passed by the High Court of Karnataka at Bangalore in regular Second Appeal No. 932 of 1984 confirming the decree passed by the Principal Munsiff, Bijapur, in Original Suit No. 331 of 1981. All the courts below dismissed the suit filed by the appellants on the ground that it was barred by the period of limitation.
2. For deciding the contention whether the suit was barred by limitation, we would first refer to a few admitted facts. It is the contention of the parties that the original mortgagor, Dhondi-ba Subarao Mahi-ndrakar was the owner of the suit property situat-ed at Bijapur city, Bijapur. He executed a mortgage deed on 10th July, 1933 in favour of his brother Hanamanth Subarao Mahindrakar for a sum of Rs. 2,500/-. As recorded by the High Court, the mortgaged amount was to be repaid within five years and the mort-gagee was to enjoy the property free of rent; that in case the mortgaged amount was not paid, the mortgagee would continue in possession on the same terms till the amount came to be paid; in case the mortgagee needed the amount and demanded the same from the mortgagor and the mortgagor failed to pay, the mortgagee was to foreclose the mortgage and recover the same and so on.
3. The mortgagee, Shri Hanamanth Subarao Mahindrakar enjoyed the property till his death i.e. 30th of January, 1942. It is also an admitted fact that since 30th January, 1942 mortgagor recovered back the possession and continued with the same till 31st August, 1981. In 1962 respondent filed a civil suit for recovering the possession of the properties by contending that she was legal heir of the mortgagee. The suit was finally decreed on 19th March, 1981 as R.S.A 252 of 1980 filed by the present appellants, was dismissed by the High Court and on the basis of the said decree, possession of the suit property was handed over to re-spondent on 31.8.1981. As the possession of the property was handed over to respondent, appellants filed the present suit i.e. O.S.A. No. 331 of 1981 on 11th December 1981 before the Munsiff Court at Bijapur for redemption and possession of the suit prop-erty. The suit has been dismissed on the ground that it is barred by limitation.
4. It appears that before dismissing the suit as time barred, the courts below have not considered the relevant fact that appellants admittedly remained in possession of the suit property till 31st August, 1981. Article 61(a) of the Limitation Act, 1963 provides that a suit by mortgagor to redeem or recover possession of immovable property mortgaged is to be filed within a period of 30 years “when the right to redeem or recover possession accrues”. In the present case as the appellants were in posses-sion from 1942 onwards till 31st August, 1981, there was no question of filing suit for recovering the possession of the mortgaged property. However, as the suit filed by the respondents in 1962 for recovering the possession, was finally decreed in their favour and the possession was delivered to them, on 31.8.1981, the right to recover the possession accrued. Before that date, cause of action to recover the possession had not accrued. Therefore, it cannot be said that the suit filed by the present appellant on 11th December, 1981 was barred by period of limitation.
5. In this view of the matter, in our view, it is not necessary to consider the provisions of Section 14 or any other provision of the Limitation Act. It is also not necessary to consider the contention based on the facts that the mortgage deed specifically provides that mortgagee shall continue to be in possession as such till the amount is repaid. In case the mortgagee needed the amount and demanded the same and the mortgagor failed to pay the same, the mortgagee had the right to foreclose the mortgage and to recover the same. No other contention was raised before the High Court or the Appellate Court. Therefore, there is no ques-tion of dealing with the same or keeping the question open.
6. In the result, the appeal is allowed. The impugned judgment and decree passed by the courts below dismissing the suit is set aside. The suit for redemption and possession of the mortgaged property is decreed on the condition that appellants shall depos-it, if not already deposited with the trial court a sum of Rs. 2,500/- within a period of three months from today. The trial court would draw the decree accordingly.
7. Ordered accordingly.
1. This appeal is filed against the judgment and decree dated 26th March, 1985 passed by the High Court of Karnataka at Bangalore in regular Second Appeal No. 932 of 1984 confirming the decree passed by the Principal Munsiff, Bijapur, in Original Suit No. 331 of 1981. All the courts below dismissed the suit filed by the appellants on the ground that it was barred by the period of limitation.
2. For deciding the contention whether the suit was barred by limitation, we would first refer to a few admitted facts. It is the contention of the parties that the original mortgagor, Dhondi-ba Subarao Mahi-ndrakar was the owner of the suit property situat-ed at Bijapur city, Bijapur. He executed a mortgage deed on 10th July, 1933 in favour of his brother Hanamanth Subarao Mahindrakar for a sum of Rs. 2,500/-. As recorded by the High Court, the mortgaged amount was to be repaid within five years and the mort-gagee was to enjoy the property free of rent; that in case the mortgaged amount was not paid, the mortgagee would continue in possession on the same terms till the amount came to be paid; in case the mortgagee needed the amount and demanded the same from the mortgagor and the mortgagor failed to pay, the mortgagee was to foreclose the mortgage and recover the same and so on.
3. The mortgagee, Shri Hanamanth Subarao Mahindrakar enjoyed the property till his death i.e. 30th of January, 1942. It is also an admitted fact that since 30th January, 1942 mortgagor recovered back the possession and continued with the same till 31st August, 1981. In 1962 respondent filed a civil suit for recovering the possession of the properties by contending that she was legal heir of the mortgagee. The suit was finally decreed on 19th March, 1981 as R.S.A 252 of 1980 filed by the present appellants, was dismissed by the High Court and on the basis of the said decree, possession of the suit property was handed over to re-spondent on 31.8.1981. As the possession of the property was handed over to respondent, appellants filed the present suit i.e. O.S.A. No. 331 of 1981 on 11th December 1981 before the Munsiff Court at Bijapur for redemption and possession of the suit prop-erty. The suit has been dismissed on the ground that it is barred by limitation.
4. It appears that before dismissing the suit as time barred, the courts below have not considered the relevant fact that appellants admittedly remained in possession of the suit property till 31st August, 1981. Article 61(a) of the Limitation Act, 1963 provides that a suit by mortgagor to redeem or recover possession of immovable property mortgaged is to be filed within a period of 30 years “when the right to redeem or recover possession accrues”. In the present case as the appellants were in posses-sion from 1942 onwards till 31st August, 1981, there was no question of filing suit for recovering the possession of the mortgaged property. However, as the suit filed by the respondents in 1962 for recovering the possession, was finally decreed in their favour and the possession was delivered to them, on 31.8.1981, the right to recover the possession accrued. Before that date, cause of action to recover the possession had not accrued. Therefore, it cannot be said that the suit filed by the present appellant on 11th December, 1981 was barred by period of limitation.
5. In this view of the matter, in our view, it is not necessary to consider the provisions of Section 14 or any other provision of the Limitation Act. It is also not necessary to consider the contention based on the facts that the mortgage deed specifically provides that mortgagee shall continue to be in possession as such till the amount is repaid. In case the mortgagee needed the amount and demanded the same and the mortgagor failed to pay the same, the mortgagee had the right to foreclose the mortgage and to recover the same. No other contention was raised before the High Court or the Appellate Court. Therefore, there is no ques-tion of dealing with the same or keeping the question open.
6. In the result, the appeal is allowed. The impugned judgment and decree passed by the courts below dismissing the suit is set aside. The suit for redemption and possession of the mortgaged property is decreed on the condition that appellants shall depos-it, if not already deposited with the trial court a sum of Rs. 2,500/- within a period of three months from today. The trial court would draw the decree accordingly.
7. Ordered accordingly.
