Even where a mortgage is invalid, a personal covenant as regards debt borrowed can be enforced.

A.R. Tiwari, J.

1. The original defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 11-9-75 passed by the District Judge, Ujjain in Civil Regular Appeal No. 5-B/74 thereby sustaining the judgment and decree dated 12-2-74 passed by Second Civil Judge Class I, Ujjain in COS No. 26-B/73.

2. Briefly stated, the facts of the case are that the appellant No. 1 (Defendant No. 1) mortgaged the agricultural lands area 10 Bighas and 19 Biswas with respondent No. 1 on 10-6-69 for a consideration of Rs. 5,000/-. The appellant No. 2 (defendant No. 2) had stood surety for repayment of the mortgaged amount. The mortgage was a simple mortgage and the possession continued with appellant No. 1. The interest was to be paid @ Rs. 9.50 per cent per annum. The period of mortgage was three years and the repayment was to be made in three instalments falling due on 10-6-70, 10-6-71 and 10-6-72. The first two instalments were agreed to be of Rs. 1700/- each & the third instalment was agreed to be of Rs. 1,600/-. It was also agreed that the interest shall be paid each month and in case of default in payment of interest for two months, the plaintiff shall have the right to recover the entire mortgaged amount at once. The mortgage deed was registered on 10-6-69. The appellant No. 1 did not pay the amount. The appellant No. 2 also did not discharge his liability as a surety. The respondent-plaintiff, therefore, filed the suit on 1-7-72 for recovery of the mortgaged amount by sale of the mortgaged property and also prayed for passing the personal decree. The appellants opposed the suit. One of the contentions was that the alleged mortgage-transaction was in contravention of Section 165 of the M.P. Land Revenue Code. Hence, the alleged liability was not enforceable under the law. The Trial Court upheld the contention with regard to contravention, but decreed the suit for Rs. 6,670.17 Paisa on the ground that the plaintiff-respondent was entitled to a simple money decree for the amount on the basis of personal covenant. The trial Court also negatived the plea of bar of limitation as the suit was filed within three years from 10-6-70 which was the date fixed for payment of the first instalment. Aggrieved, the appellant-original defendants filed the First Appeal where the fortune did not fluctuate yet undaunted by unsuccess in two Courts below, the appellants have filed this Second Appeal. The appeal was filed on 10-1-76 when unamended Section 100 of the Code of Civil Procedure was operative. The appeal was admitted on 10-2-76 and in view of the unamended position, no substantial question of law was framed at the time of admission.

3. The parties admitted that as the decree is a simple money decree and as such, the State of Madhya Pradesh is not a necessary party for disposal of this appeal.

4. I have heard the appellant Shri Rajendra Kumar Sharma and Shri Habhajanka, learned Counsel for the respondent.

5. At the time of arguments, Shri Sharma submitted that he is questioning the validity of the judgment and decree on the ground that the First Appellate Court erred in holding that the suit was filed within limitation. The question for consideration in this appeal is whether the aforesaid conclusion is sustainable?

6. The counsel for the respondents, on the other hand, submitted that the question is properly answered by the First Appellate Court and that the aforesaid question is one of fact and is not liable to be disturbed in the Second Appeal.

7. The appellant has placed reliance on AIR 1925 Nag 130, Omrao v. Ramadhar; and AIR 1939 Nag 27, Gulam Hussain v. Mir Jakirali.

8. As regards the merits of the matter, I find that the First Appellate Court upheld the approach of the trial Court and held that even where mortgage is invalid, personal covenant as regards debt borrowed can be enforced. Reliance is placed on 1972 JLJ (SN) 72, Gwalior Commercial Cooperative Bank, Morar v. Mathuradas.