AIR 1965 KERALA 154 ::1964 Ker LT 491 ::1964 Ker LJ 977

Kerala High Court

Hon'ble Judge(s): S. Velu Pillai , J

Limitation Act (9 of 1908) , Art.97, Art.116— Suit by mortgagee to realize money on mortgagor's failure to deliver possession of property - Advance of money not on strength of mere promise to execute mortgage-deed, but as consideration for mortgage with possession - Case not one of payment 'upon existing consideration' and limitation is not governed by Art.97 - Secure possession to mortgagee, being implied under agreement of usufructuary mortgage u/S.68, Transfer of Property Act, limitation held governed by Art.116. (Para 3) Where in a suit brought by a mortgagee for realization of money advanced by him on a usufructuary mortgage to the mortgagor on the latter's failure to put former in possession of the property : Held, money was advanced not on the strength of a mere promise to execute a mortgage deed, but as consideration for a mortgage with possession; payment of money could not be considered as money paid upon on existing consideration and the plea that suit was barred by Art. 97 of Limitation Act, was unsustainable.(Para 3) Under S. 68(1)(d) of the Transfer of Property Act, the mortgagee has a right to sue for the money advanced. The liability of the mortgagor is one which arises under S. 68 of the Transfer of Property Act, and considered as arising under a ....