Mohapatra, J. - (1.) IT is the Defendant -mortgagee who has filed this Second Appeal against the confirming judgment dated 8th March, 1952, of Sri L. Panda, Subordinate Judge of Puri, arising out of a suit brought by the Plaintiffs for redemption. The mortgage transaction was executed in the year 1885 (22 -5 -1885), the original mortgagors being Padmalabha and Arta. The present Plaintiffs are the sons of Padmalabha and grandsons of Arta. The Defendant also is the successor -in -interest of the mortgagee. The Defendant resisted the claim for redemption on several grounds, the ground No. 1 is that the claim is barred by limitation and the second is that the Defendant is entitled to have a permanent lease on the basis of the terms of the mortgage transaction itself. The Defendant further pleaded that since after the date of the mortgage the Defendant had made improvements by spending an amount upto Rs. 1000/ - and he is entitled to get back the amount before the relief of redemption can be allowed in favour of the mortgagors.
(2.) THE Courts below have rightly held that the clause for getting a permanent lease in favour of the Defendant is a clog for redemption and is therefore void ab initio. The point of importance that appears to be determined is the point of limitation. In the terms of the mortgage transaction itself I find that the mortgagors were to redeem the usufructuary mortgage on payment of the principal money of Rs. 100/ - along with interest at the rate Rs. 20/8/ - per cent per annum within 5 years from the date of the execution of the bond. If they do not so pay within the period fixed, the terms go on to recite, that the mortgagee will be entitled to possess the land and the houses standing thereon etc. The Courts below have rejected the plea of the Defendant on the point of limitation on the ground that as there was a stipulated period of 5 years, the time for redemption would accrue only after the expiry of the period and on a calculation from the expiry of 5 years of stipulated period the suit which has been filed on 28 -4 -50 is within time. Undoubtedly the case is governed by Article 148 of the Indian Limitation Act. The cause of action for the suit for redemption arises when the right of redemption or the right to recover possession accrues on a fair perusal of the document as a whole I am definitely of the view that the stipulated period was meant to the effect that the mortgagors would be entitled within 5 years to pay the amount and recover possession by redeeming the mortgage, The right of redemption therefore was there within that stipulated period of 5 years, On a fair reading of the document it can never be suggested for, a moment that the right of redemption accrues only on the expiry of the period, On the contrary, the mortgagors had the right all along even from the commencement of the date of mortgage transaction itself, Such being the case, it comes directly within the language of Article 148 and the suit not having been brought within 60 years from the date of the transaction is barred by limitation.
(3.) THE lower appellate Court, however has relied upon a decision of their Lordships of the Privy Council reported in Bakhtawar Begam v. Husaini Khanum, I.L.R. All. 195. In my opinion, the principles laid down by their Lordships of the Privy Council fully support the defence contention of limitation on a fair reading of the document before us. It is to be noted that the original document in that case before their Lordships was not produced in Court. The High Court of Allahabad against whose judgment the case came up before their Lordships of the Privy Council, observed as follows, in their judgment, which is quoted in the judgment of their Lordships of the Privy Council If the meaning of this contemporaneous agreement was that the mortgagors might redeem at any time within the period of nine years, the Plaintiffs' claim is barred by limitation. If, on the other hand, the intention of the parties was that the debt should remain outstanding for a period of nine years certain, then the right to redeem only accrued at the expiration of that period, Ordinarily, a mortgagor cannot, before the time limited for payment to the mortgagee expires, take proceedings to redeem. Their Lordships after quoting the observations of the High Court observed as follows - "Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period, But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of the mortgagor." Their Lordship further found that the terms that appear from the order of the Collector "the sale would be cancelled on payment of the consideration in nine years" is certainly ambiguous, On these observations therefore their Lordships had to examine the case as admitted by the Plaintiff in the plaint itself, But nevertheless it appears as a matter of principle as enunciated by their Lordships that the parties could contract that the mortgagors would be entitled to redeem within the stipulated period and if that is so, the right of redemption accrues therefore from the date of the transaction and time must run against the mortgagors from the date of the transaction itself. In this view of the matter, therefore, in my opinion, the Plaintiffs' provisions of Article 148 of the Indian Limitation Act.;