Judgment

GROVER, J.:- This is an appeal by certificate from a decree of the Madras High Court.

2. The appellant mortgaged his property bearing No. 162-A. West Masi Street, Madurai town for a sum of Rs. 45,000/- with the respondent Bank on October 14. 1950. He agreed to repay Rs. 5,000/- within a specified date and the balance was payable within two years from the date of the deed together with interest at 10 1/2 %. It was further agreed that if the mortgagor failed to pay the interest periodically and regularly he would be liable to pay interest at the rate of 12% per annum from the date of such default and further if he failed to pay the entire amount stipulated within two years he would have to pay the whole amount together with interest at 3 1/2 % per annum. The sum of Rs. 5,000 was paid within the time specified but the balance remained unpaid. In January 1952, the appellant and his wife borrowed Rs. 25,000/- and jointly executed a pronote. The wife deposited her title deeds relating to premises No. 162 West Masi Street. On June, 25, 1952 the appellant and his wife created a mortgage of their respective properties Nos. 162-A and 162 West; Masi Street to secure repayment of a sum of Rs. 8850/-. All the three mortgages were in favour of the respondent Bank.

3. In 1953 the Bank instituted a suit on the foot of the last two mortgages and obtained a decree against the appellant and his wife. This decree appears to have been satisfied. In April, 1958 the suit out of which the present appeal has arisen was filed by the Bank on the foot of the mortgage dated October 14, 1950. The main defence of the appellant, who was the sole mortgagor was that the suit was not maintainable in view of the provisions of Section 67-A of the Transfer of Property Act and that the stipulation of interest was Penal and in contravention of the provisions of the Usurious Loans Act. 1918. A number of other issues were framed but it is altogether unnecessary to mention them. The trial Court granted a preliminary decree for the recovery of principal amount of Rs. 40,000/- which remained unpaid with interest at 12 % per annum from August 1, 1952 till the date of the decree and thereafter at 6 % per annum till realisation. An appeal was taken to the High Court where two points were agitated. The first was based on the provisions of Sec. 67-A of the Transfer of Property Act and the second related to the rate of interest. The High Court did not accede to any of the contentions and dismissed the appeal.

4. Section 67-A of the Transfer of Property Act provides that a mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67 and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due. This section was inserted by the Amending Act 20 of 1929 in view of certain conflict among the High Courts in this country, with regard to the right of the mortgagee to sue at different times on different mortgages although the mortgagor was the same As pointed out in Mulla s Transfer of Property Act, 5th Edn. at page 481 Sections 61 and 67-A of this Act lay down the simple rule that if a mortgagor has made two or more mortgages of the same property or of different properties to the same mortgagee the mortgagor may redeem each separately but that the mortgage must enforce all or none. To attract the applicability of Section 67-A it is essential that the mortgagor must be the same and he should have executed two or more mortgages in respect of each of which he has a right to obtain the same kind of decree under Section 67. In the present case it is not possible to hold that the mortgagor in the suit on the foot of the mortgage dated October 14, 1950 is the same as the mortgagor in the previous suit which was filed on the foot of the mor