P L D 1956 Dacca 90 (PLP)

Defendant No. 1 filed a written statement as also defen dant No. 2, who is the wife of defendant No.

1. When the suit came on for hearing, the name of defendant No. 2 was struck off from the plaint because she was found to be an unneces sary party to the suit. Defendant No. 1 contended that the mortgages in suit were not duly executed, attested and registered, that in the property described in Schedule 1 to the mortgages he never had any possession or title, that the Secretary of the Brahman baria Loan Company, knowing of these facts included that property in the mortgage bonds in the suit only for the purpose of registration at the Brahmanbaria Sub‑Registry Office, that the claim was barred by limitation, that the plaintiff would not get the benefit of a Schedule Bank since the original mortgage was not a Schedule Bank, that the claim was excessive, that the plaintiff having once waived its claim for all sums exceeding Rs. 11,000 could no more claim the waived amount, that the plaintiff was bound by the agreement and that due to operation of various factors he was now in want and should be entitled to repay the dues in easy installments. The suit was heard by Mr. R. K. Das, Subordinate Judge, 2nd Court of Tippera, and was disposed of on the 25th of January 1947. He framed nine issues in the case and found that fraud had been practiced on the law of registration and the two documents could not be enforced as mortgages, but the plaintiff, however, was entitled to succeed in the suit on the basis of the personal covenant in the said documents being treated as registered money bonds. He, accordingly, decreed the suit against defendant No. 1 and ordered that the decretal dues be paid in ten equal annual instalments, the first of which was to fall due in March 1947, the second in March 1948, and so on and in default of any instalment, the entire balance was to fall due at once. The decree was ordered to be treated as a simple money decree. From ‑that judgment and decree this appeal has been filed by defendant No. 1, the mortgagor. The appellant has been represented before us by Mr. Prokash Chandra Pakrasi while Mr. Nirmal Chandra Nandi has appeared on behalf of the plaintiff Company. Mr. Pakrasi has not disputed the facts of the case but has advanced some arguments on questions of law only. He has argued that the plaint as drawn up is on the basis of the two mortgages, Exhs. 1 and 2, and that the cause of action is on those mortgages and the learned Subordinate judge, therefore, erred in law in giving relief to the plaintiff Company on the basis of the personal covenant in the two mortgage bonds. He has contended that the cause of action in the plaint not being on the basis of the personal covenant in the two mortgage bonds, no relief could be given to the plaintiff Company on the basis of the plaint as drawn up. He has further submitted that the two mortgage bonds were executed on the 24th of August 1.921, and the finding of the learned Subordinate judge being that they were registered at the Brahmanbaria Sub‑Registration Office in fraud of the law of registration, the suit must fail in toto and no relief could be given on the personal covenant. He has contended further that if this last argument of his be not accepted, then on the basis of the personal covenant in the two mortgage bonds, the suit should have been filed within three years from the last payment and as the suit admittedly is filed beyond three years, the suit should have been held to have been barred by limitation. On a perusal of the plaint it is abundantly clear that the suit is framed on the basis of the two mortgage bonds and the relief claimed is for a decree for Rs. 16,000 inclusive of princi pal and interest together with costs and interest and a pre liminary mortgage decree against the property mentioned in Schedule of the plaint and in default of such payment a final decree for realisation of all claims ‑together with costs incurred in Court by auction‑sale of the mortgaged property described in the Schedule of the plaint. There is, however, no prayer for a decree on the basis of the personal covenant in the mortgage bonds. The mortgage bond (Exh. 1) for Rs. 6,000 comprises two properties, one in 8 annas share of a small tank (one kani in area) situated within the jurisdiction of Sarail and Brahman baria joint Sub‑Registration Office and the other about 7 annas share in a big Putni taluk bearing an annual rental of Rs. 625 and situated within the jurisdiction of the Nasirnagar Sub- Registration Office. The mortgage bond (Exh. 2) for Rs. 2,000 also comprises two properties one an 8 annas share of the said tank (one kani in area) and the other about 7 arenas share in a Darputni bearing an annual rental of Rs. 3,00 and situated within the jurisdiction of the Nasirnagar Sub‑Registration Office. The learned Subordinate judge found that Schedule 1 of both the bonds were included deliberately in the said mortgage bonds in order that these bonds could be registered at Brahmanbaria Sub‑Registration Office and that property did not belong to defendant No. 2 and consequently fraud had been practiced on the law of registration. Remembering the facts in the case it must be seen whether the learned Subordinate judge was justified in passing a simple money decree in favour of the plaintiff Company on the basis of the personal covenant in the bonds. We have been referred to various authorities by the learned Advocate for the respondent. In doginee Mohun Chatterjee v. Bhoot Nath Ghosal (I L R 29 Cal.654), the facts were that the Sub‑Registrar of Sealdah registered a mortgage deed dated October 10, 1896, purporting to hypothecate an immovable property within the area of the Sealdah Registration Office. In the suit brought on August 31, 1901, for the enforcement of the mortgage bond, the defendant contended, inter alia, that no such property as described in the deed ever existed ; and no satisfactory evidence having been given as to its existence, it was held that the document could not take effect as a mortgage bond, but it being registered, the plaintiff's claim was not barred, though the suit was brought more than three years after the date of execution of the deed; and the plaintiff was entitled to a money decree for the whole amount secured by the deed with interest at the contract rate. In Shib Dayal v. Meharban and others (I L R 45 All. 27 (FB)), a similar view was taken but on the facts of that case it was held that a suit for a simple money decree was barred by virtue of Article 80, read with Article 116 of the first Schedule to the Indian Limitation Act, 1908, In Dro namraju Rama Rao and others v. Vissapragada Vedayya and others (I L R 46 Mad. 435), the arguments advanced by Mr. Pakrasi before us were also advanced in that case, namely, that the finding that the registration was procured by fraud made the registration void and of no effect and it could not be bad for one purpose and good for another. It was argued that the deed was good only as an unregistered money bond, and the suit having been filed more than three years after the date of the bond, was barred by limitation. Their Lordships did not accept the argument advanced and held that where land not intended to be mortgaged was included in a mortgage deed merely to get registration of the deed before a particular registering officer who would otherwise be incompetent to register it, the registration of the deed was a fraud on the registration law and did‑ not affect the immovable properties comprised in the deed and that the registration was good as regards the personal covenant to repay the mortgage money, and enabled the mortgagee to sue for it within six years as provided by Article 116 of the Limitation Act. Reference may also be made to Ratnasabapathy Chettiar and others v. Devasigamony, Pillai (I L R 52 Mad. 105 (F B)), wherein it was held that where a mortgage deed containing a personal covenant to pay the mortgage money was registered, the Article of the Limitation Act (IX of 1908) applicable to a claim, based on the personal covenant, to recover the balance due to the mortgagee after the sale of the mortgage property, was Article 116 of the Act which provided a period of six years from the due date and not Article 66 or 67 of the Act. From a consideration of the authorities cited, it is abun dantly clear that although the suit is framed on the basis of the mortgages, relief can be given to the plaintiff Company on the basis of the personal covenant in the two mortgage bonds when it has been found that fraud had been practised on the law of registration. In the present case the plaintiff Company, in addition to the facts relating to the mortgages, has set out at a great length the other materials subsequent to the execution of the two mortgage bonds so that the Court was in possession of all the facts connected not only with the mortgages in question but to the subsequent period. In these circumstances, we are satisfied that the learned Subordinate judge was right in decreeing the suit on the basis of the personal covenant and in holding that the suit was not barred by limitation. The last payments made in respect of the two mortgage bonds was on the 22nd of November 1939, as the endorsement on the back of each of the bonds made by the appellant himself in his own handwriting would show. The suit was filed on the 17th of July 1945, that is, within six years from the last payment made by the appellant. Mr. Pakrasi finally submitted that even if the Court could pass a decree on the basis of the personal covenant in the bonds, it could only do so provided a prayer to that effect had been made in the plaint and as there is no such prayer the learned Subordinate judge could not have passed such a decree in favour of the plaintiff respondent Company. This argu ment is met by Mr. Nandi by referring to the general prayer (Gha) which is to the following effect: "Plaintiff prays for a decree for further relief which may be found in accordance with the pleadings of the parties and evidence on record" Mr. Pakrasi's contention is that a general prayer is not enough and the plaintiff should have amended the plaint and asked for relief on the personal covenant in the bonds. We are unable to accede to Mr. Pakrasi's argument. It is true that there is no specific prayer, as argued by him, but the authori ties are against him on the point. In Biswanath Prasad an others v. Chandra Narayan Choudhury (I L R 48 Cal. 509 (P C)), an appeal was filed by the representatives of the mortgage praying (i) that the mortgage should be put in force against the land, and (ii) in the alternative, that under the head of general relief, judgment should be given against the defendants personally for payment of the amount of the debt. At page 517, their Lordships observed as follows: "As regards the alternative claim for personal judgment for the mortgage debt, it is to be observed that no such claim was made in the Courts in India. There is nothing in the evidence or in the judgments which would enable their Lordships to deal with such a claim. At the same time their Lordships think it desirable in this case that the plaintiffs should have an opportunity of bringing this matter before the High Court. If any such application is made, it will be for the High Court to consider whether any such claim is open upon the present pleadings and, if not, whether any amendment raising it should be made; and further, whether under all the circumstances the claim should be entertained at this stage of the proceedings. If the High Court should think it right to enter upon the consideration of this claim, all defenses on the merits or arising out of the lapse of time must be open to the defendants, and the High Court should have power to impose any terms which it thinks just and to deal with the costs. It is clear from that observation that their Lordships of the Judicial Committee did entertain such a prayer but as there were no materials before them to pass a personal decree, the matter was referred to the High Court to be gone into. In the present case all the materials not only connected with the two mortgages are to be found in the plaint but also other materials subsequent to the execution of the mortgage bonds. Lastly, reference may be made to Babu Nisar Ahmad Khan v. Babu Raja Mohan Manucha and others (A I R 1940 P C 204). At pages 206 and 207 their Lordships observed as follows "Both parties have appealed to His Majesty in Council. The two appeals were consolidated and heard together. The first question argued on behalf of the appellant was that as the suit was for sale and was dismissed, the Courts below had no power to pass a decree for repayment of the money due under the mortgages. Apart from the reasons mention ed in the Chief Court's judgment this argument loses sight of the fact that the plaintiffs in their prayer (a) asked for a repayment of the amounts due on the mortgages, and a sale in default of it. There was also a prayer, (d) asking for such further and other relief as the Court might think fit. Their Lordships are therefore of opinion that the Courts in Oudh (hereinafter referred to as the two Courts) were justified in making the order of repayment. It was also urged that the enforcement of the personal covenant to pay contained in the deeds was barred by limitation at the date of the suit. This view is unsustainable, for the covenant being in writing registered, the relevant Article is 116 of Limitation Act, 1908, which provides for a period of six years and the suit was well within that period". In the present case, in addition to the prayer for a decree fort Rs. 16,000 inclusive of principal and interest together with cost and interest to be accrued and a preliminary mortgage decree against the property mentioned in the Schedule of the plaint and in default for a final decree for realisation of all claims together with costs incurred in Court by auction‑sale of the mortgaged property described in Schedule to the plaint, the plaintiff in prayer (Gha) asked for a decree for further relief which may be found in accordance with the pleading of the parties and evidence on record. We are, therefore, satisfied that although there is no specific prayer for a decree Rank on the personal covenant in the mortgage bonds, such a decree can be passed on the general prayer for further relief. The appellant has been ordered to pay the decretal dues in ten equal annual instalments, the first instalment to be paid in March 1947, and the subsequent instalments each year in the month of March and in default the entire balance was to fall due at once. We have considered the question of instalments and we direct that the decretal dues be paid in ten equal annual instalments, the first instalment to be paid within a month from the arrival of the record in the lower Court to be notified to the parties, and the subsequent instalments in that month each year. In default of payment of any instal ment, the decree‑holder will be entitled to execute the decree for that instalment. With this modifications, the appeal is dismissed with costs. CHOWDHURY, J.‑

I agree. K. M. A. Appeal dismissed.