LexMANIMALA DEVI versus INDU BALA DEBYA & ORS.
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• • • 5 S.C.R . SUPREME COURT REPORTS MANIMALA DEVI v. INDU BALA DEBYA & ORS. 635 (K. SUBBA RAO, M. HIDAYATULLAH AND J.C. SHAH, JJ.) Limitation Act (IX of 1908), s. 20 and Art. 116-Person liable to pay debt if covers mortgagor after assignment of his interest-- Transfer of Property Act (IV of 1882), s. 68-Nature of right con- ferred. One Rajkumar Singh was the proprietor of three properties A, B and C. He borrowed a loan from Rabindra Nath and mort- gaged properties A and B and by the deed of mortgage undertook personal liability to pay the dues and agreed that in default of payment by the due date the mortgagee do recover his dues by sale of properties A, B and C. He created a second mortgage to secure another sum borrowed from Sasindra Nath and Indra Nath stipulating that he would repay the loan on or before a fixed date, and further stipulating that the mortgagees may receive royalty from the terms of property C. Five years later he assigned his interest in property A and about three months thereafter he assigned his interest in property B. Subsequent to this assignment an endorsement of part payment was recorded on the first mortgage deed. The mortgagor's rights title and interest in property C were sold at a court auction and the purchaser took possession of that property. But before this date the mortgagor had made another part payment and an endorse- ment was made to this effect on the mortgage bond. Sometime later the appellant obtained assignments of the rights of the mort- gagees under the mortgage deeds and filed a suit for a decree for enforcement of the two mortgages by sale of the mortgage properties. This suit was filed more than twelve years after the date on which the mortgage amounts became payable . The trial court rejecting the pleas of limitation raised by the defendants decreed the suit. On appeal by the fourth defendant the High Court reversed the decree and dismissed the suit. Held: (i) The High Court was in error in holding that the mortgagor's interest in properties A & B only was mortgaged. (iz) A mortgagor whose interest in the equity of redemption is transferred by assignment sale or otherwise to another person is not a "person liable to pay the debt" within the meaning of s. 20 of the Limitation Act. Part payment in the mortgagor after transfer or assignment of his interest in the mortgaged property will not therefore extend the period of limitation under s. 20 of the Limitation Act. Pavai v. Palanivela Goundan,I.L.R. [1940] Mad. 872. 1963 December 3 636 SUPREME COURT REPORTS [1964] 1963 (iii) The right conferred by s. 68 of the Transfer of Property Act is not a right to enforce the mortgage but a right to sue for Manimala Devi the mortgage money on the personal covenant or tp claim compen- v sation when the mortgagee is deprived of his security. A suit · for enforcement of the personal covenant in such a case is govern- lndubala Debya ed by Art. 116 of the Limitation Act, 1908 and a suit for enforce- & others ment of a claim for compensation is governed by art. 120 of the Act. Shah J. Unichaman v. Ahmed, I.L.R. 21 Mad. 242. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 560 of 1960. Appeal from the judgment and decree dated July 18, 1955, of the Patna High Court in Appeal from original decree No. 500 of 1947. S.C. Agarwal and D.P. Singh, for the appellant. P.K. Ghosh, for respondent No. l. · December 3, 1963. The Judgment of the Court was delivered by SHAH J.-Rajkumar Ran Bahadur Singh-herein- after called 'the mortgagor' was the proprietor. of a five annas share in Tauzi No. 16 of Mauza Bansjora, eight annas share in Mauza Simitanr and certain interest in Mauza Bahaldih all in District Manbhum. The mortgagor had leased 200 bighas of coal-bearing land out of his holding in Mauza Bahaldih to certain lessees for an annual royalty of Rs. 2,000 payable in two equal instalments, the first in the month of Aswin of the Vikram year and the second in the month of Chaitra. On June 14, 1922, the mortgagor borrowed Rs. 5, 500 from one Rabindra Nath Chakravarty and executed a deed of mortgage whereby he agreed personally to repay the amount, and encum- bered his share in Mauzas Bansjora and Simitanr for repayment of the amount borrowed with interest at the rate of Rs. 1/8/- per mensem, and further agreed that in default of payment, the mortgagee do recover the amount due by sale of his interest in Mauza Bansjor
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