Judgement

Consolidated Appeal (No. 71 of 1927) from two decrees of the High Court (February 12, 1924) varying a decree of the First Class Subordinate Judge of Satara (July 21, 1919).

The appellants instituted a suit on August 6, 1910, against the respondents in the Satara Court to enforce six mortgages executed between 1840 and 1844 by the respondents predecessor in favour of the appellants predecessor. Some of the properties mortgaged were in the Bombay Presidency, some were not within British India, being in the Kolhapur State. The mortgages were all substantially in the same form. They provided for interest at a fixed rate, that the mortgagee should have the right to collect the rents and manage the properties, and provided for an annual account being taken to ascertain the amount remaining due under the mortgages. No date for repayment was provided. It was found that the mortgages had been treated as being consolidated. Since 1859 or 1860 the mortgagees had not exercised their right to collect the rents from the properties in British India.

The High Court (Macleod C.J. and Shah J.), varying the judgment of the trial judge, held that the plaintiffs were entitled under Bom. Reg. V. of 1827, s. 15, sub-s. 3, to an order for sale in respect of the properties in Kolhapur State ; but that the suit should be dismissed with regard to the properties in British India, as it was to be inferred that the mortgagees had abandoned their security upon those properties.

1930. March 3, 6. Dunne K.C. and Jardine for the appellants (respondents to cross-appeal). There was no evidence to justify the finding that the mortgagees had abandoned their security upon the properties in British India. Permitting the mortgagors to collect the rents did not affect the mortgagees security upon the properties Juggeewundas Keeka v. Ramdas Brijbookundas. (( 1841) 2 Moo. I. A. 487, 500.) If there was any dispossession it was only of the usufruct, not of the right to sell. The mortgages were not strictly usufructuary mortgages, as they provided for interest at a fixed rate. The mortgagees had a right of sale by Bom. Reg. V. of 1827, 8. 15, sub-s. 3, as the mortgages contained nothing which could be construed as a " special agreement " nor was there any recognized law or usage, to the contrary.

De Gruyther K.C. and Parikh for respondent No. 1; E. B. Raikes K.C., Parikh and Joshi for respondent No. 2 (appellant in cross-appeal). The Court had no jurisdiction to entertain the suit with regard to the properties not in British India ; the words " situate within the jurisdiction of different Courts " in s. 17 of the Code of Civil Procedure, 1908, refer solely to Courts in British India Setrucherla Ramabhadraraju v. Maharaja of Jeypore. (( 1919) L. R. 46 I. A. 151.) The mortgages imposed no liability upon the mortgagor to pay; they were purely usufructuary mortgages, and conferred no right of sale Macpherson on Mortgage, pp. 11, 13 ; Shephard and Brown on the Transfer of Property Act, 7th ed., pp. 288, 288. There was therefore a " special agreement " excluding the operation of s. 15, sub-s. 3, of the Regulation Sawaba Khandappa v. Abaji Jotirav (( 1887) I. L. R. 11B. 475.); Shaik Idrus v. Abdul Rahiman (( 1891) I. L. R. 16 B. 320.); Sadashiv Abaji Bhat v. Vyankatrao Ramrao. (( 1895) I. L. R. 20 B. 296,) The proper inference from the facts is that the mortgagee abandoned his security upon the properties in British India. The decision in the case in 2 Moores I. A. has no bearing upon that point. Further the suit was barred as to the properties in British India. The mortgagees sole right under the mortgages was to possession. He ceased to have possession in 1859 or 1860, and the suit was barred upon the expiration of six years from that date by s. 1, sub-s. 16 (or twelve years, under sub-s. 12), of the Limitation Act, 1859. It was barred also by the Limitation Act, 1871, Sch. I., art. 132, upon the expiration of twelve years from the execution of the mortgage. The Act o