SRI RAJAH SETHRUCHERLA RAMA CHADDRA RAJU BAHADUR GARU Vs. SRI SRI SRI VIKRAMA DEO MAHARAJULUNGARU, MAHARAJAH OF JEYPORE

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge s Court, Vizagapatam, in a suit by the mortgagee to enforce his security. The facts which raise the questions for determination in this appeal are not in dispute. Exhibit A and B are two mortgages executed on the 4th January 1906 and 4th July 1911 by the defendants to the plaintiff to secure the principal sum of rupees five lakhs and one lakh twenty thousand respectively; they may, however, be taken as one mortgage inasmuch as the terms or the one were incorporated in the other. The mortgagors agreed to pay the principal amount on the 4th of January 1916 and to pay interest in the meantime year by year on the 4th of January each year. If the interest or the principal was not paid on the due dates, the mortgagee was entitled to take possession of the mortgaged properties and out of the net profits, to pay himself the interest due, and appropriate the balance, if any, to the principal. There is a stipulation in Exhibit B on the construction of which depends one of the points for determination in this appeal. It is as follows: "If according to the terms of this deed, the interest of each year be not paid on the due date, these terms will not prevent, you (mortgagee) from recovering the said amount then and there, if you should so desire, without waiting for the due date, namely 4th January 1916." No interest was paid in accordance with the stipulations of the mortgage-bond, and on the 21st of July 1913 the mortgagee brought the present action to recover the whole of the mortgage amount, both principal and interest, by sale of the mortgaged properties, on the basis that on the true construction of the clause above set out, the whole of the mortgage-money including the principal had become due. He also asked in the alternative for possession of the mortgaged properties. Only-one other fact need be mentioned, and that is that a portion of the mortgaged property is situate in the Agency Tracts of Vizagapatam. The learned Subordinate. Judge has given the mortgagee a decree for sale. On these facts the appellants, the mortgagors, raised two contentions: (1) that the mortgagee is not entitled to a decree for sale to realise the whole of the mortgage amount including the principal, but can only recover the amount of interest due, without waiting for the date when the principal amount would become due, and that the non-payment of interest on the due date or dates does not entitle the mortgagee to demand payment of the principal at once; that at the best, he can only recover possession of the mortgaged properties and pay himself the interest and also portions of the principal if the net income is available for that purpose. The learned Subordinate Judge came to the conclusion, and we think rightly, that the mortgage was primarily a simple mortgage, though in certain events it can be converted into a usufructuary mortgage; but he did not consider the question, whether by non-payment of interest on the due dates the principal amount became payable before the 4th of January 1916 so as to entitle the mortgagee to enforce the security by sale of the mortgaged properties and obtain payment also of the principal. We have had the clause read to us in the original and have no doubt that the correct interpretation of the clause is, as contended by the learned Vakil for the appellant, that the mortgagee can recover the interest payable by sale of the mortgaged properties without waiting for the time when the principal amount would become due. As suggested by Mr. Ramesam, it is likely that that clause was specially put in to avoid the contention given effect to in the case of Kannu v. Natesa 14. M. 477, that the mortgagee cannot sue to recover even the interest which had accrued due by the sale of the hypothecated property till after the principal amount had become due. The documents, it may be noted, were drafted by the Pleader for the mortgagee. It is, therefore, clear that on the date when the present action was brought and also on the date on which the first Court passed the decree, viz., 1st May 1914, the sale of the mortgaged property to realise the principal amount of six lakhs and twenty thousand rupees should not have been ordered. The mortgagee was entitled to recover the interest then due by sale of a sufficient portion of the mortgaged property and also to obtain possession of the same as mortgagee. It is, however, contended for the respondent that in the circumstances of the case we should not disturb the decree of the first Court, inasmuch as the plaintiff would now be entitled to that decree. It is clear that the income of the mortgaged property is insufficient to pay even the interest, that the plaintiff can at once bring a suit for sale and can also take possession of the property immediately, that any delay in the sale of the property could only be disadvantageous to both the parties and that the defendants are not in any way prejudiced by the present decree standing. Mr. Ramesam frankly conceded that driving the plaintiff to another suit would only increase the costs, without in any way benefiting his clients.

(2.) It has been held in several cases that the Appellate Court can take cognizance of matters which happened after the institution of the suit for the purpose, at any rate, of moulding the relief which the plaintiff was entitled to. No doubt this will be done only in exceptional cases, where it is necessary to prevent injustice or avoid multiplicity of proceedings. In cases where the plaintiff who had a title to relief at the inception of the suit had subsequently lost it, or was entitled to a discretionary relief such as an injunction which the subsequent events make it unjust to grant, or when a new defence to the claim had accrued to the defendant after the institution of the suit, or when the Court could not grant the relief which the plaintiff was entitled to by events which happened subsequently owing to no fault of the parties, Appellate Courts can, and in some cases may be bound to, take notice of events which happened subsequently. [Ram Baton Sahu v. Mohant Sahu 6 C.L.J. 74 : 11 C.W.N. 732 and Mills v. Green 159 U.S. Sup. Court 651 : 40 Law. Ed. 293.] A familiar instance in India is a suit for partition. It is, however doubtful whether even under the very extended powers of amendment conferred by Order VI, Rule 17, corresponding to Order XXVIII, Rule 12, of the English Rules a Court has power to allow a plaintiff to claim reliefs to which he was not entitled at the time of the action on a new title which accrued after. [Evans v. Bagshaw 5 Ch. App. 340 : 39 L.J. Ch. 145 : 18 W.R. 657 Govinda v. Perumdevi 12 M. 136 Tottenham Local Board v. Law Conservancy (1913) 1 Ir. R. 48 : 2 T.R. 410.] In this case the plaintiff when he brought his action had a right to recover even the principal amount, though not by sale of the property. If, for instance, the income from the mortgaged property had been much more than sufficient to pay the interest, or if, by accident, the income had greatly increased, the mortgagors at any rate thought there were valuable mines in their estate (See Exhibit IX), the mortgagee would be entitled to appropriate it towards the principal. That, as a matter of fact, the income was insufficient even to pay the interest does not affect the question. We, therefore, think that this is not a case of an entirely new-title or a wholly fresh cause of action which has accrued to the plaintiff since the suit. Though ordinarily we would have given a decree to the plaintiff for possession of the mortgaged properties and a decree for the interest due, with a right to bring a sufficient portion of the mortgaged property to sale for recovering that interest, in the circumstances of this case, we think it unnecessary to interfere with the decree passed by the first Court.

(3.) The other point taken by the appellants is this that the Subordinate Judge s Court, Yizagapatam, had no jurisdiction to grant any relief respecting lands situate in the Agency Tracts, as under Act XXIV of 1839, the operation of the ordinary rules for the administration of civil justice ceased to have effect in those tracts, and a special machinery with special rules for the administration of justice was created. Section 17 of the Code, which gives jurisdiction to a Court to give relief in suits for lands part of which is within its jurisdiction and part within the jurisdiction of another Court, does not apply. It is contended that that section applies only to cases where both the Courts are governed by the Civil Procedure Code. This objection was, however, not taken in the first Court nor even in appeal at the time when ? it was filed, but was taken long after as a supplemental ground of appeal. Mr. Sarma, for the respondent, contends that this is an objection to the place of suing within the meaning of Section 21 of the Code and we are not, therefore, at liberty to give effect to this contention even if it is sound. We agree with Mr. Sarma that we are precluded from allowing this objection. Mr. Ramesam contends that Section 21 does not apply to this case, because his objection is not to the place of suing as his contention is, not that the Vizagapatam Court was not the proper Court to entertain the suit, but only that it cannot give relief respecting immoveable properties in the Agency Tracts. Section 21 follows Sections 15 to 20 which regulate the place of suing, and an examination of those sections shows that a contest might arise as to the place of suing with reference to the cause of action, the residence of the defendant or defendants or the situation of property both moveable and immoveable. In all cases where objection is taken that the Court taking cognizance of the suit is not entitled to adjudicate upon the claim, whether in whole or in part, for want of jurisdiction, it is an objection to the place of suing. We are, therefore, of opinion that this contention is not now open to the appellant. We have come to this conclusion the more readily as it is conceded by the learned Pleader for the appellant that his clients had no more defence to an action instituted in the Agency Court than they had to the present suit. The appeal must, therefore, be dismissed with costs. Time for redemption six months from this date.