A usufructuary mortgage stands discharged after the expiration of fifteen years from the date of the mortgage, and the mortgagee's possession thereafter is permissive and not adverse. A party who has prosecuted a proceeding in a court that lacked jurisdiction in good faith may be entitled to the benefit of Section 14 of the Limitation Act.

JUDGMENT :

P.K. Mohanti, J. - The second appeal is by Defendant No. 1 against the concurrent decisions of the Courts below decreeing the Plaintiffs' suit for recovery of possession of the mortgaged property on adjudication that the usufructuary mortgage stood discharged u/s 17 of the Orissa Money-Lenders Act, 1939.

2. The Plaintiffs are the sons of the original mortgagor and Defendants 1 and 2 are the sons of the original mortgagee. The Plaintiffs case was that on 3-4-1923 their father mortgaged the property usufructuarily with the father of Defendants 1 and 2. The mortgagee died about ten years before the suit without delivering possession of the mortgaged property and Defendants 1 and 2 being in possession of the same did not also deliver possession of the mortgaged property to the Plaintiffs. The Plaintiffs filed an application u/s 17(2) of the Orissa Money-Lenders Act on 19-2-1966 which was registered as Revenue Case No. 31/7-1 of 1966 in the Court of the Sub-Divisional Magistrate, Sambalpur and on 14-9-1969 the Sub-Divisional Magistrate passed orders declaring the mortgage to have stood discharged and directing Defendants 1 and 2 to deliver possession of the mortgaged property in favour of the Plaintiffs. Since the Defendants 1 and 2 did not comply with the order, the Plaintiffs filed a petition on 6-11-1969 for execution of the order. But the Sub-Divisional Magistrate by his order dated 30-1-1970 held that he had no jurisdiction to deal with the matter u/s 17(2) of the Orissa Money-Lenders Act. The Plaintiffs accordingly alleged that the period from 19-2-1966 to 30-1-1970 should be excluded u/s 14 of the Indian Limitation Act while computing the period of limitation for the suit.

3. Defendants 1 and 2 admitted that the suit property was usufructurily mortgaged with their father. But they disputed the allegation that the mortgage security stood discharged u/s 17 of the Act. They also admitted that the Plaintiffs had filed an application u/s 17(2) of the Act before the Sub-Divisional Magistrate, Sambalpur, but contended that the period spent in prosecuting the proceeding before the Sub-Divisional Magistrate should not be excluded u/s 14 of the Limitation Act. Their further contention was that the Plaintiffs executed a sale deed on a plain paper on 18-1-1932 in respect of the suit property on a consideration of Rs. 250/- and that since then they were in possession of the same by virtue of the sale. They alternatively pleaded that they had acquired title to the suit property by adverse possession.

4. Both the Courts below came to the concurrent findings that the sale deed dated 18-1-1932 (Ext. A) is a false and fabricated document; that the mortgage security stood discharged u/s 17 of the Act on the expiry of 15 years from the date of the mortgage; that Defendants 1 and 2 continued in possession of the mortgaged property on behalf of the mortgagor and the nature of their possession was permissive and not adverse and that the Plaintiffs having prosecuted the proceedings before the Sub-Divisional Magistrate, Sambalpur in good faith they were entitled to the benefit of Section 14 of the Indian Limitation Act.

5. The sole contention in the second appeal is that the suit is barred by limitation and the Plaintiffs are not entitled to the benefit of Section 14 of the Indian Limitation Act.

6. The suit mortgage was executed on 3-4-1923. The Orissa Money-Lenders Act of 1939 came into force in the district of Sambalpur with effect from 15-4-1940. Section 17(1) of the Act as it stood on 15-4-1940 reads as follows:

17. Discharge of usufructuary mortgage: (1) Notwithstanding anything to the contrary contained in any other law or anything having the force of law or in any contract, a usufructuary mortgage, which is executed after the commencement of the Act, shall, unless discharged previously, be deemed to stand discharged after the expiration of fifteen years from the date of the mortgage and the mortgagee shall deliver up to the mortgagor all