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2006 (3) TMI 793 - SC - Indian LawsAssignment of the usufructuary mortgage - acknowledgement under Section 18 of Limitation Act, 1963 or not - discharge of mortgage debt under the deed of mortgage dated 7.9.1935. Whether the assignment of the usufructuary mortgage by Krishna Pillai in favour of Soundararaja Iyenger under deed dated 12.2.1954 amounted to an 'acknowledgement' under Section 18 of Limitation Act, 1963, thereby enabling plaintiffs to compute a fresh period of limitation for the suit for redemption, from the date of such acknowledgement? - HELD THAT:- When the said deed of assignment was executed on 12.2.1954, the mortgage dated 7.9.1935 was subsisting, as the period of limitation at that time, was 60 years. In view of the admission of jural relationship contained in the assignment deed, operating as an acknowledgement of liability, a fresh period of limitation started from 12.2.1954. When the suit was filed on 16.11.1981, the new Limitation Act was in force under which the period of limitation was 30 years. When the 30 years period is computed from 12.2.1954, the suit filed in the year 1981 was clearly within limitation. Whether the mortgage debt under the deed of mortgage dated 7.9.1935 stood discharged under Section 9 of the Tamil Nadu Debt Relief Act, 1979? - HELD THAT:- When the Debt Relief Act, came into force on 15.7.1978, the mortgage was very much subsisting. Section 9 of the Debt Relief Act contains special provisions in respect of mortgages. Sub-section (1) of Section 9 provides that the provisions of the said section applies to all mortgages executed at any time before 14.7.1978 and by virtue of which the mortgagee is in possession of the property mortgaged to him. Sub-section (5) of Section 9 provides that where the mortgagee has been in possession of the mortgaged property for an aggregate period of 10 years or more, then, the mortgage debt shall be deemed to have been wholly discharged with effect from expiry of the period of ten years or where such period expired before 14.7.1978, with effect from 14.7.1978. The said provision applies as the mortgage transaction does not fall under any of the exceptions enumerated in Section 4 of the said Act. As the mortgagee and his successors were in possession of the mortgaged property ever since 7.9.1935, that is, for more than 10 years as on the date when the Act came into force, the said mortgage debt stood wholly discharged with effect from 14.7.1978. If the answer to the above two questions is in the affirmative, to what relief plaintiffs are entitled to? - HELD THAT:- When the mortgage debt got statutorily discharged, the mortgagee became liable to deliver back possession to the mortgagor. In such a situation, what the mortgagors-plaintiffs can claim from the mortgagee, is not rendition of accounts, but mesne profits for wrongful possession from the date of discharge of the mortgage debt. There is, therefore, no question of accounting either of the amounts due by the mortgagor to the mortgagee or of any accounting of over-payments or for refund of any over- payments by the mortgagee. In the suit, plaintiffs only sought rendition of accounts but did not claim mesne profits nor paid any court fee in regard to past mesne profits. Plaintiffs cannot, under the guise of a claim for accounts, seek a decree for mesne profits. After obtaining possession, it is open to them to sue for such mesne profits as is permissible in law. The relief of redemption can be only in regard to the property mortgaged under the deed of mortgage and not in regard to any other property. Therefore, the decree has to be amended so as to bring the description of the mortgaged property in consonance with the description of the property mortgaged under the deed of mortgage dated 7.9.1935 (Ex. A-1) The judgment of the High Court is set aside and the suit is decreed, holding that the plaintiffs are entitled to a decree for redemption in regard to the suit property. Final decree shall be drawn accordingly - The prayer for rendition of accounts is rejected - The schedule to the decree containing the description of the mortgaged property shall be amended so as to bring it in conformity with the schedule to the mortgage deed dated 7. 9.1935. Appeal allowed.
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