Sir Lionel Leach, C.J:— The only question in this appeal is, one of limitation. On 20th April 1933 the plaintiff lent to the first and second defendants a sum of Rs. 2,000 on the security of a sub-mortgage of three separate mortgages, executed by the third, fourth and fifth defendants respectively in favour of the second defendant. The first of these mortgages was executed by the third defendant on 22nd July 1927 to secure a sum of Rs. 3,500, the second on 5th January 1923 by the fourth defendant to secure Rs. 750, and the third on 30th June 1925 by the fifth defendant to secure Rs. 1,000. On 29th June 1937 the plaintiff instituted in the Court of the District Munsif of Dindigul a suit to recover the amount due to him by the first and second defendants in respect of the sub-mortgage. As he had the right to do, he asked for the sale of the mortgaged property. On 6th June 1938 the plaint was returned to him for presentation to the. Subordinate Judge. In Vellayan Chettiar v. Mahalinga Pathan(1) this Court had held that, when a sub-mortgagee sues for the sale of the properties mortgaged to his mortgagor, he must pay a court-fee based on the amount due on the original mortgage and not merely on the amount due in respect of his sub-mortgage.
In these circumstances the plaintiff decided to abandon his claim for the sale of the properties mortgaged by the third and fourth defendants. He was content to ask for the sale of the property mortgaged by the fifth defendant and for sale of the “mortgage right” of the second defendant so far as it concerned the other two properties. By abandoning the claim for the sale of the properties mortgaged by the third and fourth defendants the valuation of the suit became sufficiently low to allow the suit to be instituted in the District Munsif's Court. Having amended the plaint the plaintiff, on the day on which it was returned to him, re-presented it to the District Munsif. By 6th June 1938 more than twelve years had elapsed from the date of the mortgage created by the fifth defendant who then pleaded that the suit so far as he was concerned was barred by the law of limitation. This plea was accepted by the District Munsif who dismissed the suit so far as the fifth defendant was concerned, but granted a decree against the first and second defendants for the amount due under the sub-mortgage. In the event of the decretal amount not being paid, he directed that the sub-mortgage should be sold. The plaintiff appealed to the Subordinate Judge, who held that the suit was not barred against the fifth defendant. Thereupon the fifth defendant appealed to this Court. His appeal was heard by Chandrasekhara Ayyar, J. who agreed with the District Munsif and accordingly allowed the appeal. The learned Judge having given the necessary certificate, this appeal has been filed from his judgment under the provisions of clause 15 of the Letters Patent.
It was found by the Subordinate Judge that, in instituting his suit originally in the District Munsif's Court, the plaintiff acted in good faith and therefore he was entitled to the benefit of section 14 of the Limitation Act. Chandrasekhara Ayyar, J. agreed that the plaintiff had acted in good faith, but he considered that by the amendment made in the plaint the plaintiff had changed his cause of action. The plaintiff says that there was no change in the cause of action, but only a change in the reliefs asked for and that this was not appreciated by the learned Judge. We consider that the contention is well founded.
The plaintiff, both in the plaint as it originally stood and in the plaint as amended, was suing on his sub-mortgage. The right to relief arose from the fact that he was the sub-mortgagee and the failure of the sub-mortgagor to pay his debt was his cause of action. A sub-mortgagee has two courses open, to him. He can, if he wishes, limit his suit to the sub-mortgagor, in which case he only asks for the sale of the sub-mortgagor's interest in default of payment of the decretal amount. On the other hand, he may, join the original mortgagor and ask for a decree for the sale of the mortgaged property in default of payment. In this case the relief to which he is, entitled is to be gathered from Form No. XI in Appendix D to the Code of Civil Procedure. In that form the original mortgagor is described as defendant No. 1 and the original mortgagee as defendant No. 2. The form provides for a declaration of the amount due to defendant No. 2 on his mortgage and then directs that defendant No. 1 shall pay into Court the amount due to defendant No. 2 and that on payment into Court of the money the plaintiff shall be at liberty to apply for payment out. In default of payment, the plaintiff may apply to the, Court for a final decree for sale. The form also provides that if defendant No. 2 pays into Court to the credit; of the suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the amount due to defendant No. 2, the latter: shall himself be at liberty to apply to the Court for a final decree for sale.
In this case the plaintiff adopted the second; course. He asked for a decree directing the defendants to pay the amount due on the second mortgage; and in default for a decree for sale of all the properties covered by the sub-mortgage. In dropping the relief asked for against the third and fourth defendants the plaintiff was not altering his cause of action. His cause of action was still based on his sub-mortgage. So far as those defendants were concerned he was merely abandoning the reliefs to which he was entitled if he had chosen to file the suit in the Subordinate Judge's Court. What has weighed with the learned Judge—and great stress has been laid on this before us—is that the plaintiff in his amended plaint asked for the sale of the mortgage right of the first and second defendants in the two other properties. This was, however, a relief which was open to him in the plaint as originally drafted and in asking for it he was not setting up a new cause of action. The cause of action still remained on his sub-mortgage.
The learned Counsel for the fifth defendant has drawn our attention to the decision of the Calcutta High Court in Krishna Kishore De v. Amarnath Kshettry* and the decision of this Court in T.S. Mohideen Pichai Sahib v. Nagoore Meera Rowther(2). In the first of these cases a person owning property in the mofussil mortgaged it. The mortgagee sub-mortgaged, but by the same deed he gave the sub-mortgagee further security, properties owned by him in Calcutta. The sub-mortgagee instituted a suit on the Original Side of the Calcutta High Court, and it was held that he could not be allowed by the inclusion of two claims in one suit against his mortgagor and against the original mortgagor in respect of properties situated as regards one of them in the mofussil to make the composite suit against both the defendants maintainable on the Original Side of the Court. This case has been quoted because Mookerjee, J., in the course of his judgment, said that the causes of action under the original mortgage and under the sub-mortgage were distinct and affected different sets of individuals of whom one set held properties situated entirely in the mofussil. This may be accepted, but it does not mean that the plaintiff in this case has by the amendments in the plaint changed his cause of action. He is still suing on his sub-mortgage. In T.S. Mohideen Pichai Sahib v. Nagoore Meera Rowther it was also pointed out that the mortgagee's cause of action and that of the sub-mortgagee are separate; but there is nothing in this judgment which can be read as rendering support for the argument that the plaintiff in the present case sued on a different cause of action when he amended his plaint. Throughout his case has been based upon his sub-mortgage and the fact that a different relief was asked for as against the first and second defendants in the amended plaint does not preclude the operation of section 14 of the Limitation Act. That section says nothing about relief. It merely provides that the previous suit shall be founded upon the same cause of action and prosecuted in good faith. Here the cause of action was the same and clearly there was good faith.
For these reasons the appeal will be allowed and the decree of the Subordinate Judge restored with costs throughout.
G.R