An Otti transaction implies a covenant to enforce the mortgage, and a suit for recovery of mortgage money by the sale of the mortgaged property is maintainable. The personal remedy was not barred by limitation under the Indian Limitation Act, 1908.

1. The legal representative of the defendant is the appellant. The defendant executed Ext. D2 Otti dated 10-6-1959 in respect of the plaint property for Rs. 2500/- in favour of Captain Common. A portion of the building included in Ext. D2 was given to the possession of the mortgagee. The mortgagee assigned the Otti right to Sosamma by Ext. P2 on 14-2-1963 who assigned the same to the plaintiff by Ext, P3 dated 19-11-1963. The plaintiff alleged that whatever possession of the plaint property he had has been surrendered to the defendant. The suit is instituted for recovery of the mortgage money with interest at the rate of 5% per annum from the date of suit.

2. Ext. D2 which is the original mortgage deed was produced by the defendant. Ext. P1 is a registration copy of Ext. D2.

3. It was cotended by the defendant that the amount due under Ext. D2 was discharged by him. He produced Ext. D1 receipt dated 23 91962 to prove the plea of discharge. According to the defendant, Ext. D2 was handed over to him by Captain Common along with Ext. D1. The courts below concurrently found that Ext. D1 is not genuine, the discharge pleaded by the defendant is not true, Ext. D2 was not returned to the defendant as stated by him but was obtained by her surreptitiously. Counsel appearing for the appellant did not rightly challenge these concurrent findings as they are based on pure appreciation of evidence.

4. The grounds raised in the second appeal are that the suit for recovery of the mortgage money is not maintainable as there is no covenant is Ext. D2 for the repayment of the mortgage money and it is barred by time.

5. Ext. D2 is dated 10 61959 and the suit was instituted on 18 81964. The suit is for realisation of the mortgage money by the sale of the mortgaged property and also from the defendant. Though the suit is within 12 years from the date of Ext, D2 it is beyond three years from its date,

6. Ext. D2 is an Otti Adharam. There was no plea that the transaction evidenced by Ext, D2 is not an otti. In Ext. D2 there is neither a personal covenant to repay the mortgage money nor a provision enabling the mortgagee to recover the mortgage money by the sale of the mortgaged property. There is only an indemnity clause enabling the mortgagee to realise any loss arising from any undisclosed encumbrance in the mortgaged property.

7. Counsel for the appellant therefore contended relying on S.68 of the Transfer of Property Act and the decisions in Manimala Devi v. Indubala, AIR. 1964 SC. 1295 and Kunju Karthyayani v. Parameswaran Achari,1971 KLJ. 51, that the right of the mortgagee to sue for mortgage money can arise only from the personal covenant to repay implied in Ext. D2 which is an Otti and since the suit is instituted beyond three years from the date of Ext. D2 it is barred under the Limitation Act of 1963.

In Manimala Devi v. lndu Bala, AIR. 1564 SC. 1295, Shah, J. referring to S.68 of the Transfer of Property Act observed:

"The right conferred by S.63 is again not a right to enforce the mortgage but a right to sue for the mortgage money on the personal covenant or to claim compensation when the mortgagee is deprived of his security. A suit for enforcement of the personal covenant to pay the mortgage money when the mortgagor has bound himself to repay the same is governed by Art.115 of the Limitation Act. Similarly the right to sue where the mortgagee is deprived of the mortgage security or where be is not secured in bis possession of the mortgaged property or where possession is not delivered to him as agreed, the claim maintainable by the mortgagee is one for compensation and the period of limitation for a suit to recover the mortgage money is governed by Arc. 120 of the Limitation Act from the date of destruction or deprivation of the mortgage security or possession and not from the date when the mortgage money is repayable: Unichaman v. Ahmed (ILR. 21 Mad. 242)".

In Kunju Karthyayani v. Parameswaran Achan',1971 KLJ. 51, Justice Poti cons