Judgement

Appeal (No. 74 of 1935) from a decree of the High Court in its appellate jurisdiction (June 21, 1934) which reversed a decree of the High Court in its ordinary original civil jurisdiction (May 25, 1933).

This appeal involved the question whether the appellant was entitled to a decree for money based on the covenants in an indenture of mortgage, dated June 27, 1924, and whether a conveyance, dated March 14, 1928, by which the respondent Kumar Dinendra Mullick conveyed to the appellant certain of the mortgaged properties for the price of Rs.45,000 operated as an acknowledgment of liability and satisfied the requirements of s. 19 of the Indian Limitation Act (IX. of 1908), so as to prevent the suit being barred by limitation. The conveyance recited (inter alia) " And whereas the vendor did on the 13th January, 1928, contract with the purchaser for the absolute sale to him of the said .... premises 24 and 25, Upper Chitpore Road, free from encumbrances at or for the price of Rs.45,000 which is to be set off against the balance of the purchasers dues from the vendor and the estate of Kumar Ganendra Mullick, deceased, .... under the said Indenture of Additional security bearing date the 27th day of June, 1924, And Whereas over two lakhs of rupees are now due from the vendor and the estate of the said Kumar Ganendra Mullick deceased to the .... purchaser as aforesaid. Now this Indenture witnesseth that in consideration of the said sum of Rs.45,000 by the direction of the vendor credited to the vendor and the estate of the said Kumar Ganendra Mullick deceased by the purchaser in the account of monies due under .... the said Indenture of Additional security, .... the vendor doth hereby grant transfer and convey unto the purchaser,” etc.

The other facts appear from the judgment of the Judicial Committee.

Buckland J., who tried the suit, held that the appellant was entitled to a personal decree on the mortgage deed in his favour.

On appeal a Division Bench (Costello and Lort-Williams JJ.) dismissed the suit. The appeal is reported at ( 1934) I. L. R. 62 C. 28.

1937. April 22, 23. L. P. E. Pugh K.C. and T. B. W. Ramsay for the appellant. There are two distinct debts by covenant in the two deeds, and two distinct mortgage obligations. A mortgagee can pursue all or any of his remedies, either separately in different suits or together in one suit at his option Halsburys Laws of England, 2nd ed., vol. 23, p. 420. The attempt to alter the first decree by adding terms to the decree was misconceived and was bound to fail, but the fact that the mortgagee tried to pursue a course which he was not entitled to take cannot prejudice him when he pursues a proper remedy, as he is now doing. The point as to estoppel is not sustainable, for it is not suggested that any one has altered his position relying on a representation. Sect. 47 of the Civil Procedure Code does not apply, because the first suit had been completely disposed of and nothing more could be done in that suit. There can be no question of res judicata because the present claim has never been put forward in any prior suit, and could not have been, because it did not exist at the time when the former suit was filed.

30 Law. Rep. 64 Ind. App. 302 ( 1936- 1937) Pradyumna Kumar Mullick V. Kumar Dinendra Mullick

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Dunne K.C. and J. M. Pringle for the respondents. The suit is barred by limitation, having been instituted more than six years from the date of the mortgage deed of 1924. There was no acknowledgment of liability within the requisite period.

Pringle followed. If a plaintiff proceeds on the security, and does not ask for relief on the personal covenant, he cannot bring a separate suit afterwards on the personal covenant. He may bring a suit on the personal covenant first, and then sue on the security, but the converse is not allowed. [Reference was made to Kishan Narain v. Pala Mai. (( 1922) L. R. 50 I. A. 115, 117.)]

June 4. The judgment of their Lordships was delivered by S