Bajpai and Hamilton, JJ.:— This is an appeal by the defendants, Girdhar Lal and Brijendra Nath, who were impleaded as defendants 1 and 2 in the suit out of which the present appeal has arisen. The suit was brought by Saiyed Alay Hasan Musanna for the recovery of a certain sum of money on the basis of a mortgage executed on February 17, 1915, by Ganeshi Lal and Babu Ram Chand in favour of the plaintiff. The stipulated period for payment in the mortgage deed was five years and the suit was instituted on February 16, 1932, just within 12 years from February 17, 1920, when a cause of action for the suit arose by reason of the fact that five years were provided in the mortgage deed for payment. The original mortgagors were brothers and members of a joint Hindu family; but subsequently there was a partition and by means of an arbitration award the property mortgaged fell to the share of Babu Ganeshi Lal, the ancestor of the defendants 1 to 6. These defendants were really the principal defendants to the suit and defendants 6 to 8 were pro forma, inasmuch as they were the representatives of Babu Ram Chand, the other mortgagor who had no interest left in the mortgaged property after the partition. The Government acquired 26.92 acres of land out of the property mortgaged and a sum of Rs. 2075 was awarded as compensation to the defendants 1 to 5 and defendants 1 and 2 took this money on August 23, 1928. (There is some dispute about this date and it may well be October 14, 1927).

Upon these allegations a decree for the entire mortgage money was sought against defendants 1 to 5 and it was prayed that in the event of non-payment, the mortgaged property might be sold but over and above this, a decree for Rs. 2,193 (there is a silent error in the plaint. The plaintiff was under the impression that the defendants got as compensation only Rs. 2,075), the amount of compensation realised by defendants land 2 together with pendente lite and future interest might be passed against the person and other property of the defendants. The trial Court framed several issues, one of them being whether the suit was barred by limitation and the other whether the plaintiff was entitled to claim a personal decree for the amount of compensation received by defendants on account of a portion of the mortgaged property. It is stated in the Judgment that the points of limitation and acknowledgment were not pressed and hence it was not necessary to come to any detailed finding on the issue of limitation. It then proceeded to consider the plaintiff's claim for a personal decree and in the end it gave a decree for the entire mortgage money to the plaintiff. A personal decree against defendants 1 and 2 was to be prepared for Rs. 2,075-5-0 against defendants 1 and 2 alone because it appeared that they alone had withdrawn the compensation. A decree under O. XXXIV, R. 4 was prepared for the mortgage money minus the sum of Rs. 2,075 against defendants. 1 to 5.

In appeal before us, it is contended that the Court below wrongly interpreted S. 73(2) of the Transfer of Property Act that it had erred in law Page: 436in passing a simple money decree with regard to the amount of compensation moony and that the claim for a personal decree was barred by limitation. It appears to us that these questions are important questions of law with far-reaching consequences. On the one hand, it is contended on behalf of the respondent that the compensation money withdrawn by defendants 1 and 2 represented the security which the plaintiff hand under his mortgage of February 17, 1915, and did not cease to represent his security owing to the fact that the defendants had wrongfully withdrawn that money from the Court of the Land Acquisition Officer in which it had been deposited and that therefore defendants 1 and 2 are liable to pay the said amount to the plaintiff and the Court below was perfectly right in giving the personal decree that it did give to the plaintiff. It is also said that the claim is not barred by limitation, inasmuch as the proper Article to apply would be Art. 132 of the Limitation Act. Reliance in this connection is placed on the case of Barhamdeo Prasad v. Tara Chand, I.L.R 41 Cal. 654. Support is also sought by a reference to S. 73 of the Transfer Property Act.

On the other hand, it is contended on behalf of the appellants that the rights of the parties have got to be considered in view of the provisions of S. 73 of the Transfer of Property Act alone and not on any principles of justice, equity and good conscience. It is not contended before us that if S. 73 as amended, can throw any light on the subject under discussion before us, the section should be deemed to be inapplicable because it has no retrospective effect. The contention put forward on behalf of the appellants is that under the amended S. 73 of the Transfer of Property Act, the mortgagee has no charge on either the surplus of the sale proceeds under Sub-S. (1) or over the compensation money under sub-S. (2). Under the original section where mortgaged property was sold on failure to pay arrears of revenue, the mortgage had a charge on the surplus of the proceeds but the legislature considered that the use of the word “charge” was unhappy, inasmuch as under S. 100 of the Transfer of Property Act charge can relate only to immovable property and as the sale proceeds under Sub-S, (1) or compensation under sub-S. (2) were not immovable property, the phraseology of the amended section required a change and while effecting that change, the legislature provided that the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of the surplus of the sale proceeds in Sub-Section (1) and out of the amount due to the mortgagor as compensation. The submission is that the mortgagee has to put a claim either before the Collector or the Court wherever the surplus of the sale proceeds may be in deposit under sub-S. (1) or before the Land Acquisition Officer under sub-S (2). The amount due on the mortgage becomes payable immediately upon the sale of the mortgaged property or upon the acquisition of the mortgaged property and a claim arising under the section has got to be made to the appropriate authorities. If the general principles of substituted security have got to be applied oven under the present circumstances in spite of the Page: 437inclusion of S. 73 on the Statute Book, then it would appear that the security can be followed wheresoever and with whomsoever it may be or whatever shape it may have assumed and for this proposition support might be obtained from the Privy Council case to which reference has been made in an earlier part of our order. If however the case has got to be decided on the strict interpretation of the provisions of S. 73, we are not quite clear as to what the decision ought to be and as we said before the questions involved in the case are questions of some importance. We have not thought fit at this stage to refer to the other oases that were cited before us at the bar, but it might be mentioned that the question of limitation also assumes great importance, inasmuch as it is argued that Art. 132 would perhaps not in terms apply.

It was contended on behalf of the appellants that the learned Civil Judge did not consider the question of limitation in connection with the passing of a personal decree and the plea of limitation was abandoned on behalf of the defendants only in connection with the passing of the mortgage decree under O. XXXIV. Our attention is drawn to the wording of issue No. 5 and it is said that, although a definite plea was taken in the written statement that the claim is at all events time-barred so far as the realisation of the amount of compensation is concerned, the Court below did not frame an issue on this point and contended itself by striking an issue on the point whether the plaintiff was entitled to claim a personal decree. The plea of limitation is essentially a plea on a question of law and there are several authorities which go to show that the plea can be taken at any stage if it does not depend on the determination of any question of fact. We feel inclined to hold the view that in the present case so far as the remedy by way of a personal decree is concerned, the question of limitation does not necessarily depend on the determination of any question of fact and the appellants should be allowed to argue that plea as well. But if after the return of answers from the Full Bench learned Counsel for the respondent is able to show that some questions of fact require determination, it would be open to the Counsel for the respondent to press that point before the Division Bench.

We refer the following questions of law to the Full Bench:—

(1) Can a simple money decree with regard to the amount of compensation money received from the treasury by the appellants be passed in favour of the respondent under the circumstances of the present case?

(2) What is the period of limitation for the passing of such a personal decree and when does the cause of action for the same arise?

We direct that the papers be laid before the learned Chief Justice for the formation of a Full Bench.

Mr. Baleshwari Prasad for Appellants.

Mr. Mushtaq Ahmad for Respondent.

The Judgment of the Court was delivered by

Iqbal Ahmad, J.:— The following questions of law have been referred for decision to this Full Bench:—

(1) Can a simple money decree with regard to the amount of compensation money received from the treasury by the appellants be passed in favour of the respondent under the circumstances of the present case?

(2) What is the period of limitation for the passing of such a personal decree and when does the cause of action for the same arise?

The circumstances referred to in question (1) are as follows:—

On February 17, 1915, two persons named Ganeshi Lal and B. Ram Chand, who were members of a joint Hindu family, executed a deed of simple mortgage for a sum of Rs. 8,500 in favour of Syed Alay Hasan plaintiff-respondent. The stipulated period for payment of the mortgage money was five years and the cause of action for the recovery of the mortgage debt, therefore, arose on February 17, 1920. The suit giving rise to the present appeal was instituted a day before the expiry of 12 years from the date of the accrual of the cause of action, viz., on February 16, 1932.

In the year 1917 partition was effected between Ganeshi Lal and Ram Chand by means of an arbitration award and the mortgaged property was allotted to the share of Ganeshi Lal. Ganeshi Lal is dead and his legal representatives are defendants 1 to 5. Ram Chand is also dead and his legal representatives were impleaded as pro forma defendants in the suit but we are not concerned with them as they, after the partition, had no interest left in the mortgaged property.

In the year 1928 the Government acquired 26.92 acres of land out of the mortgaged property and a sum of Rs. 2,193 was awarded as compensation to defendants 1 to 5. This compensation money was withdrawn by defendants 1 and 2 (defendants 3 to 5 being then minors) either in the year 1927 or in the year 1928. The exact date on which the compensation money was withdrawn is immaterial for the decision of the questions referred to above.

On the date of the suit the amount due to Alay Hasan plaintiff-respondent on the basis of the mortgage was a sum in excess of Page: 439Rs. 22,000 but he sought a decree only for a sum of Rs. 18,500. The relief prayed for by him was as follows:—

“Defendants Nos. 1 to 5 may be ordered to pay Rs. 18,500 together with pendente lite and future interest to the plaintiff, within the time to be fixed by the Court, otherwise the property detailed below may be sold by auction, and out of Rs. 18,500 the amount of suit, Rs. 2,075, the amount of compensation realized by defendants Nos. 1 to 5 together with the pendente lite and future interests may also be awarded by passing a personal decree against the said defendants”.

It would be noted that over and above a decree for sale the plaintiff claimed a simple money decree for the compensation money against defendants 1 to 5 and it is this prayer of the plaintiff that has given rise to the two questions of law mentioned above. The compensation money withdrawn by defendants 1 and 2 amounted to Rs. 2,193 and it appears that by some oversight the plaintiff claimed a simple money decree only for a sum of Rs. 2,075.

Defendants 1 to 5 contested the suit inter alia on the ground that the plaintiff was not entitled to a personal decree for the amount of compensation realized by defendants 1 and 2 and that the suit was barred by limitation. We are not concerned with the remaining pleas urged in defence.

The trial Court observed in the course of its judgment that the point of limitation was not pressed and accordingly it was not necessary to decide the issue relating to limitation. It overruled the other pleas urged in defence and passed a simple money decree for the amount of compensation against defendants 1 and 2 who had withdrawn the same. It further passed a decree for sale under O. 34, R. 4, C.P.C against defendants 1 to 5 for the mortgage money minus the amount of compensation with respect to which a simple money decree was passed against defendants 1 and 2.

The first question that arises for consideration is whether the Court below was right in passing a simple money decree against defendants 1 and 2 with respect to compensation money withdrawn by them. Prior to the passing of Act No. XX of 1929 which effected amendments in the Transfer of Property Act (Act IV of 1882) there was no statutory provision entitling a mortgagee to claim the compensation awarded by the Government on the compulsory acquisition of the whole or a part of the mortgaged property, but such a right has now been given by the amendment introduced in S. 73 Page: 440of the Transfer of Property Act. It is this amendment which has occasioned the reference of the first question mentioned above to this Bench.

In order to appreciate the respective contentions of the parties it is convenient to put side by side S. 73 as it stood in Act IV of 1882 and S. 73 as now amended.

S. 73 of Act IV of 1882:—

73. Where mortgaged property is sold through failure to pay arrears of revenue or rent due in respect thereof, the mortgagee has a charge on the surplus, if any, of the proceeds, after payment thereout of the said arrears, for the amount remaining due on the mortgage, unless the sale has been occasioned by some default on his part.

S. 73 as amended.

73. (1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale proceeds remaining after payment of the arrear and of all charges and deductions directed by law.

(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 189A, or any other enactment for the time being in force for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in Part, out of the amount due to the mortgagor as compensation.

(3) Such claims shall prevail against all other claims except those of prior encumbrancers, and may be enforced notwithstanding that the principal money on the mortgage has not become due.

It would be noted that in the case before us the compensation money was withdrawn by defendants 1 and 2 before the passing of the Amending Act mentioned above. But this fact is immaterial for the decision of the first question as the argument in the case has proceeded on the assumption that S. 73 as amended has retrospective effect. Apart from this it has been laid down by a Full Bench of this Court in Hira Singh v. Jai Singh 1937 A.L.J 659, that the sections of the Transfer of Property Amendment Act XX of 1929 which are not mentioned in S. 63 of that Act have a retrospective effect at least where no action was pending on April 1, Page: 4411930, when that Act came into force. S. 73 is not mentioned in S. 63 of the Amending Act and accordingly in accordance with the Full Bench decision S. 73 must be deemed to govern the present case. As the Full Bench decision is binding on me it is not open to me to construe S. 63 of the Act otherwise than in Accordance with the interpretation put on that section by the Full Bench.

It is argued on behalf of the defendant-appellants that, as by Cl. (2) of S. 73 the legislature has given to a mortgagee the right to claim payment of the mortgage money out of the compensation awarded under the Land Acquisition Act, a mortgagee, who has not availed himself of that right, is precluded from claiming a decree for the compensation money as against the mortgagor. The argument is that S. 73(2) is exhaustive of the remedy that a mortgagee has in the event of compulsory acquisition of the whole or a part of the mortgaged property, and that he has no right to follow the compensation money in the hands of the mortgagor, if the latter has realized the same. In this connection the omission of the word “charge” in the amended section is emphasized and it is pointed out that the word “charge” which found a place in original S. 73 was deliberately omitted by the legislature with a view to put it beyond doubt that a mortgagee had no charge on the surplus sale proceeds or on the compensation money as the case may be, and that his only remedy is to realize the same before it passes into the hands of the mortgagor.

The contention on behalf of the plaintiff-respondent, on the other hand, is that the compensation awarded on the acquisition of the mortgaged property represents the security which the mortgagee has under his mortgage and the mortgagee is, therefore, entitled to follow that security and to claim the compensation money from the mortgagor if he has wrongfully withdrawn the same. It is argued that S. 73(2) is an enabling section and gives the mortgagee a quick and speedy remedy to realize the whole or a portion of the mortgage money from the compensation money but has not the effect of depriving the mortgagee of the security that he has under his mortgage.

Now, even before the passing of the Amending Act of 1929 the weight of judicial authority was in favour of the view that on the compulsory acquisition of the mortgaged property the rights of the mortgagee are transferred to the compensation money and that money becomes impressed with the same liability as the land. In Page: 442other words, when the property covered by the mortgage is compulsorily acquired the lien which attached to the property is transferred to the compensation money which becomes a security in a new form. To this effect were the decisions in Venkata Viraragav ayyangar v. Krishnasami Ayyangar (1883) 6 Mad. 344, Jotoni Choudhrani v. Amar Krishna Saha (1909) 13 Cal. W.N 350, Ashutosh Rai…Decree-Holder v. Babu Lal Jhungar…Judgment-Debtor . (1920) 5 Pat. L.J 650 and Parag Din v. Nankau Singh A.I.R 1930 Oudh 292. All these decisions give effect to the well recognized doctrine of substituted security by virtue of which the rights and interests of the mortgagee in the mortgaged property attach to the property which may replace the mortgaged property. The original S. 73 of the Transfer of Property Act was also based on the principle of substituted security.

The contrary view was taken by this Court in Basa Mal v. Tajammal Husain (1894) 16 All. 78 and by the Oudh Judicial Commissioner's Court in Sajjadi Begam v. Mst. Janki Bibi7. In Basa Mal's case it was held that a mortgagee who omits to claim the compensation money before it is paid to the mortgagor is not entitled to realize the same in execution of a decree for sale passed on the basis of a mortgage, and in the Oudh case it was observed that there was no authority in the Transfer of Property Act for the proposition that when a mortgaged property is acquired under the Land Acquisition Act the mortgagee has a charge on the purchase money.

It was in this state of conflict of Judicial decisions that Cls. (2) and (3) were added to S. 73 and the word “charge” was omitted from Cl. (1) of the section by the Amending Act of 1929, The question then arises whether the legislature by this amendment intended to lay down that on the acquisition of the mortgaged property the principle of substituted security would not apply to compensation money. It cannot be doubted that the principle embodied in original S. 73 was the principle of substitution of properties and securities in favour of a mortgagee who, through no fault of his own, was deprived of his original properties and securities, and I can discover nothing in the amendments now made to that section to warrant the inference that in the event of the sale or of acquisition of the mortgaged property, the legislature intended to deprive the mortgagee of his security altogether and to restrict his remedy only to the claiming of the surplus sale proceeds or of the compensation money. I recognize Page: 443that in interpreting a particular statute all that a Court is entitled to do is to examine its language and to put on that language its natural meaning uninfluenced by any consideration derived from the previous state of the law, but, in the absence of a definite and express indication by the legislature of an intention to deprive a mortgagee of his ordinary remedy to enforce his security as against every item of the mortgaged property, I do not find any justification for attributing such an intention to the legislature. The omission of the word “charge” from Cl. (1) of S. 73 is attributable to the recognition by the legislature of the fact that even apart from any statutory provision the mortgagee has, in accordance with the principle of substituted security a charge on the surplus sale proceeds. Further the word “charge” has acquired a technical meaning and special procedure is provided by law for its enforcement and, as the legislature intended to give the mortgagee a right to claim the surplus sale proceeds without resorting to that special procedure, it omitted the word “charge” from the section. The addition of Cls. (2) and (3) to S. 73 was, in my judgment, intended to set at rest the conflict in the judicial decisions mentioned above and to give the mortgagee a similar right with respect to compensation money as was given to him with respect to surplus sale proceeds. It is however clear that there are no words of limitation in the section that may lend colour to the suggestion that by the amendment the right of the mortgagee to follow the property substituted for the mortgaged property was put an end to, and his remedy was confined only to claiming of surplus sale proceeds or the compensation awarded in the acquisition proceedings. If the legislature had intended to nullify the security of the mortgagee so far as the surplus sale proceeds or the compensation money were concerned, I would have expected the legislature to make a provision in so many words in the section. There is however nothing in the section to restrict the right of the mortgagee only to the claiming of the sale proceeds or the compensation money. I, therefore, hold that the rights given to a mortgagee by S. 73 are over and above the rights that he has under the law to enforce payment of the mortgage money. That this is so is manifest by the provision in Cl. (3) of S. 73 that gives the mortgagee the right to claim the surplus sale proceeds or the compensation money even before the principal money on the mortgage has become due. Ordinarily a mortgagee has the right to claim the mortgage money after the same has become due. There are certain exceptions to this rule that are provided for by certain clauses of S. 68 of the Transfer of Property Act which I shall Page: 444notice in due course. It is however important to note that a provision that gives a mortgagee the right to realize the whole or a portion of the mortgage money even before the same has become due cannot be interpreted to mean that such rights as accrue to a mortgagee to enforce payment of the mortgage debt after the same has become due have been taken away from him.

The doctrine of substituted security is a doctrine of wide application. If the subject of a mortgage is an undivided share and the joint sharers effect a partition the security of the mortgagee, according to that doctrine, attaches to the share allotted in severalty to his mortgagor. Similarly the doctrine was applied by their Lordships of the Judicial Committee in Barhamdeo Prasad v. Tara Chand (1914) 41 Cal. 654 to a case where the mortgaged property was sold in enforcement of a decree obtained on a prior mortgage and after the satisfaction of that decree surplus sale proceeds were left. In a suit by the second mortgagee their Lordships held that the surplus sale proceeds represented the security which the second mortgagee had under his mortgage, and he was, therefore, entitled to a decree with respect to the same in enforcement of his mortgage. Similarly in Punnayya v. Chilakalapudi Venkatapa Rao A.I.R 1926 Mad. 343, the doctrine was applied to a case in which the house mortgaged was pulled down by the representative in-interest of the mortgagor and the materials were utilized by him for other building. It was held that the mortgage attached to the property in its converted state, i.e, to the building in the construction of which the materials of the house mortgaged were utilized, It is unnecessary to enumerate the other instances in which the doctrine has been or may be applied. It is however clear that there is nothing in the Transfer of Property Act to indicate that the scope of the application of that doctrine was in any manner intended to be restricted.

But it may be asked why by enacting S. 73 the legislature did in particular give a mortgagee additional right with respect to proceeds of revenue sale or compensation money apart from the rights that the mortgagee has under the principle of substituted security? To my mind the answer to this question is simple. The right of the owner of an immovable property to mortgage the same is subject to his liability to pay Government revenue or other charges of a public nature or rent due in respect of such property and is also subject to the right of the Government to acquire that property in accordance Page: 445with the provisions of the Land Acquisition Act, 1894. The right to realize the revenue etc, by sale of the property or the right to acquire that property, is, therefore, paramount to the right of the mortgagee to enforce his security as against that property and in cases contemplated by Cl. (1) and (2) of S. 73 the mortgage is nullified so far as the property is concerned. In other words, the sale or the acquisition of the mortgaged property is free from the operation of the mortgage, and as the sale or acquisition may take place before the amount secured by the mortgage has become due, the legislature, with a view to protect the mortgagee from the loss that may accrue to him by the withdrawal of the surplus sale proceeds or the compensation money by the mortgagor, has by S. 73, given him a right to claim those proceeds or that money even though the mortgage debt may not have become due.

The obvious object of a decree for sale in enforcement of a mortgage is to secure the payment of the mortgage debt by converting the mortgaged property into money, and the mere fact that the mortgaged property has been sold or acquired and thus converted into money cannot disentitle the mortgagee from recovering the amount of his debt from the sale proceeds or the acquisition money. It follows if the mortgagor has wrongfully withdrawn those proceeds or that money the mortgagee is entitled to a decree with respect to the same as against the mortgagor. Ordinarily a decree passed in enforcement of a deed of simple mortgage is a decree for sale, but as on sale or acquisition the mortgaged property is converted into money, and it would be meaningless to pass a decree for sale of money, the only decree that the Court can grant to the mortgagee in enforcement of his security in such a case is a decree for money against the mortgagor. It is however manifest that the claim of the mortgagee in such a case is not to enforce as against the mortgagor the remedy which the mortgagee has on a personal covenant by the mortgagor to pay. The suit in such a case is essentially to enforce payment of the mortgage debt by realization of the security in the new form.

Reliance was however placed by the learned Counsel for the appellants on S. 68 of the Transfer of Property Act which provides that a mortgagee has not the right to sue for the mortgage money except in the cases enumerated in that section. It is a fact that the case of withdrawal of surplus sale proceeds or of compensation money is not provided for by S. 68, but this, in my judgment, does not Page: 446disentitle a mortgagee to institute a suit for enforcing his security against those proceeds or that money. The cases enumerated in S. 68 are those in which the mortgagee gives up his security and claims only a simple money decree, whereas in the case under consideration the mortgagee far form giving up his security sues to enforce the same.

For the reasons given above I am of the opinion that the right given to a mortgagee by S. 73 is over and above the right that he has under the law to realize the mortgage debt by enforcing his security against the mortgaged property or the property substituted for the mortgaged property. As the surplus sale proceeds or the compensation awarded under the Land Acquisition Act represent the mortgaged property in a new form the mortgagee is entitled to recover the same in enforcement of his security.

In discussing the first question referred to us I have to a great extent anticipated the answer to question No. (2). The plaintiff's suit is a suit not for the refund of the compensation money withdrawn by defendants 1 and 2 but is in fact and in substance a suit to enforce his mortgage against all the properties the subject of that mortgage. A portion of the mortgaged property having been acquired by the Government if now beyond the reach of the mortgagee, but the lien that attached to that portion of the property was transferred to the compensation awarded by the Government and in paying for personal decree against defendants 1 to 5 the plaintiff was only suing to enforce payment of money that was charged upon immoveable property. The plaintiff's cause of action was not the withdrawal of the compensation money by defendants 1 and 2, but was the non-payment of the mortgage debt by the mortgagor on the stipulated date. The plaintiff could be granted a decree for the compensation money only on proof of the fact that his right under the mortgage was a subsisting right and that the mortgage debt was due, and further that the compensation money which was withdrawn by defendants 1 and 2 was money which, in accordance with the principle of substituted security, he was entitled to regard as part of his mortgage security. In this view of the matter there is no escape from the conclusion that the suit was “to enforce payment of money charged upon immovable property” within the meaning of Art. 132 of the First Schedule to the Limitation Act and the cause of action for the suit arose on February 17, 1920. The view that I take is in consonance with the decision of their Lordships of the Privy Council in Barhamdeo Prasad v. Tara Chand. Page: 447The use of the words “claim” and “due to the mortgagor” in Cl. (2) of S. 73 indicates that the right given by that clause to the mortgagee could be exercised by him so long as the mortgagor had not withdrawn the compensation money from the Court in which the same was in deposit. If the mortgagee does not avail himself of this right, there is nothing in the section to deprive him of his original rights as mortgagee and he can bring a suit and claim to enforce his security as against the compensation money withdrawn by the mortgagor provided he brings his suit within 12 years of the accrual of the cause of action as prescribed by Art. 132. It may be that in the event of the withdrawal of the surplus sale proceeds or compensation money by the mortgagor the mortgagee has a cause of action based on the provisions of S. 73 to sue for the recovery of the amount withdrawn, but even them his right as a mortgagee remains intact. It is one thing to sue for the infringement of the right given to a mortgagee by S. 73 and it is quite another to sue to enforce the security given by the mortgage.

My answer to the questions referred to this Bench, therefore, is that the plaintiff is entitled to a simple money decree with regard to the compensation money withdrawn by defendants 1 and 2 and that the period of limitation is 12 years from the date of the accrual of the cause of action and that the cause of action accrued on February 17, 1920.

I may add that notwithstanding the view expressed above the decree passed by the Court below in this case is, in my judgment, not in accordance with law. Only a portion of the mortgaged property was acquired by the Government and the rest of that property is still available to satisfy the plaintiff's claim. If the amount realized by the sale of the available property is enough to satisfy the plaintiff's claim a simple money decree against the mortgagor with respect to the compensation money would be superfluous. I, therefore, consider that the decree in such a case should primarily be a decree for sale of the available mortgaged properties under O. 34, R. 4, C.P.C and should further provide that, in the event of the non-realization of the entire mortgage debt by the sale of those properties, the mortgagee will be entitled to a simple money decree against the mortgagor for an amount not in excess of the amount withdrawn by him on account of compensation money.

Harries, J.:— I agree.

Bajpai, J.:— I agree.

Questions answered.