A mortgage with a personal covenant to pay is enforceable by a suit for sale.

JUDGMENT :- This appeal is directed against the judgment and decree of the learned principal Subordinate Judge, Coimbatore, dismissing the appellants suit to enforce two mortgages executed in his favour and dated respectively 2nd October 1942 and 10th February 1944, the first of them securing repayment of a sum of Rs.3000 and the second a sum of Rs.7000. Both the mortgages were with possession and, prescribed specific periods for redemption. The first of the mortgages recited (original in Tamil -Ed).

"Moontu varusha vaida theerndhadhum nan melpadi asal thugaiyai umakku chelutti adiyil kanda sottukkali meethukkolvenagavum."

A similar recital was also found in the other mortgage. The defence to the suit was that the mortgages were usufructuary ones and as such the suit to enforce them by bringing the hypotheca to sale was not maintainable. The defendant also claimed that inasmuch as he had, under S.83 of the Transfer of Property Act, 1882, deposited the monies due under the mortgages, as scaled down by the provisions of Sec.9-A of the Madras Agriculturists Relief Act, 1938, as amended by Madras Act XXIV of 1950, the plaintiff could not recover the amount by means of a suit. The trial judge accepted the defence on both the grounds and dismissed the suit. In his view, the recitals to pay did not amount to covenants to pay and the mortgages were only usufructuary mortgages. On the other ground, the trial judge noticed that the plaintiff declined to accept the amounts deposited under Sec.83 of the Transfer of Property Act contending that the defendant was not entitled to scaling down. But he thought that as, in his opinion, the defendant was entitled to the benefit of Sec.9-A of the Madras Agriculturists Relief Act 1938, the deposit under Sec.83 of the Transfer of Property Act was proper and that the "tender has the effect of extinguishing the mortgages."

2. It seems to me that the view of the learned trial Judge as to the nature of the mortgages cannot be supported. The recitals in the mortgages, to wit, (original in Tamil -Ed).

"Moontu varusha vaida theerndhadhum nan melpadi asal thugaiyai umakku chelutti adiyil kanda sottukkali meettukkolvenagavum."

clearly amount to a covenant to pay the debts. The recitals follow the fixation of definite periods of redemption. Similar language as used in the recitals here, has been construed by this court to constitute a personal covenant to pay. In Muhommadhu Mamooda v. Ramanatha Pillai, 1946-1 Mad LJ 90 : (AIR 1946 Mad 312), the recital was (original in Tamil-Ed).

"Sangai Kazhittu thogaiyai Katti ottiyai meettukkolvenagavum."

and following the construction placed by this court on more or less similar wording in Kangaya Gurukkal v. Kalimuthu Annavi, ILR 27 Mad 526 (FB). Rajamannar J. as he then was held that the words clearly denoted a personal covenant to pay and therefore, enabled the mortgagee to bring a suit for sale. With due respect, I agree with that construction and hold, that the recitals in the two mortgages in this case undoubtedly mean personal covenants to pay. In fact, the trial Judge, in one place of his judgment, was prepared to take that view but stated:

"Thus it was his (plaintiffs) definite assertion that he was entitled to possession. In view of this, though there is a personal covenant in the documents to pay, the plaintiff is not entitled to enforce the same."

Obviously, the learned judge, in adopting that reasoning has mis-directed himself. The mortgages being with possession, the plaintiff was naturally entitled to make the assertion, and it is wrong to say that because of the assertion, the plaintiff could not enforce the personal covenants by a suit for sale. I hold that the suit was maintainable.

3. It is not in dispute that simultaneously with the execution of the mortgages, the defendant continued in possession of the properties mortgaged for certain periods under lease deeds executed by him in favour of the plaintiff. It is true that the defendant does not appear t