Article 63: (Arts. 147, 135 and 146 of the Act of 1908):
(a) The period of limitation for a suit by a mortgagee for foreclosure is thirty years and the period of limitation starts to run when the money secured by the mortgage becomes due.
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ADVERTISEMENTS:
(b) The period of limitation for a suit by a mortgagee for possession of immovable property mortgaged is twelve years and the period of limitation starts to run when the mortgagee becomes entitled to possession.
There are three remedies available to mortgages, namely, right (i) for sale of property; (ii) for foreclosure; (iii) to enter into possession and realise the amount of the debt from the rents and profits of the property. A simple mortgagee and a mortgagee by deposit of title deed can sue for sale. A mortgagee under mortgage by conditional sale can sue for foreclosure if the conditions of the deed so permit. So also a mortgagee of an anomalous mortgage can sue for foreclosure or for sale or for possession if the terms so stipulate. But a Usufructuary mortgagee can only sue for possession.
Art. 63(a) applies when the mortgagee is entitled to foreclosure only. A mortgagee by conditional sale and a mortgagee of an anomalous mortgage under the terms of mortgage are entitled to foreclosure only. The essential characteristic of a mortgage by conditional sale is that on the breach of the conditions of repayment within the stipulated period the contract executes itself and that the transaction is closed and becomes one of absolute sale to be enforced by foreclosure.
An anomalous mortgage is the case where the incidents of simple mortgage and the mortgage by conditional sale are combined.
ADVERTISEMENTS:
In Govind v. Narayan, (AIR 1956 Hyd. 107), it has been held that where under a mortgage without possession a period was fixed for payment of the mortgage debt and in default the mortgagee was entitled to enter into possession, the mortgage is an anomalous mortgage and mortgagee is entitled to file a suit for foreclosure in case of default by the mortgagor for payment of the mortgage dues can sue for foreclosure and such suit will be governed by Article 63(a).
The starting point of limitation under Art. 63(a) is the date when the money secured by the mortgage becomes due and the period of limitation is thirty years.
The Article 63(b) attracts suits for possession of immovable property mortgaged in a case in which the mortgagee is entitled to possession as a mortgagee and has either not been given the possession by the mortgagor in terms of the mortgage deed or has been subsequently disposed by the mortgagor.
In Shivajee Prasad v. Mohan Darshan Das, (AIR 1967 Pat. 87), it has been held that if a Usufructuary mortgagee leases back to the mortgagor on his agreeing to pay monthly rent in lieu of interest and the mortgagor not only fails to pay rent but continues in possession after the expiry of the lease against the wishes of the mortgagee, the mortgagee will be entitled to sue the mortgagor for recovery of possession and such a suit will not be barred by a previous suit to recover the rent in arrears.
ADVERTISEMENTS:
In Нukum Chand v. Shahaba Din, (AIR 1924 Lah. 40), it has been held that where the mortgagor mortgages the property with possession but continues to remain in possession and does not deliver up its possession to the mortgagee, the right to sue for possession by such mortgagee commences from the very date when the deed of mortgage is executed and the mortgagee must sue for possession under this Article (Art. 63) within 12 years from the date even if the property is taken possession of by a prior mortgagee in the meantime.