T.N. Vallinayagam, J.
1. The plaintiff is the appellant. The suit for redemption of the plaint 'B' Schedule property and for partition of 1/31st share of the plaintiff, was dismissed by the Trial Court on the question of limitation and the same was confirmed by the appellate Court. Hence, the plaintiffs are before this Court.
2. As the suit was disposed of on preliminary issue alone by the Trial Court, and the appellate Court, while rejecting the application for amendment of the plaint, considered the question of limitation only, it has become necessary for me to consider the question of limitation alone.
3. But it must be pointed out that the Courts below have committed an error in not following the amendment to Order 14 Rule 2 CPC. The responsibility of the Court is to decide on all issues except as provided for in Sub-rule (2) of Order 14 Rule 2, it is incumbent upon the Court to adjudicate the case on all issues and render finding on all issues though the decision may depend upon one issue alone. This salient rule must be strictly followed.
4. Order 14 Rule 2 reads thus:
'2. Court to pronounce judgments on all issues: (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues:
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue related to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force; and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.'
5. Non-following of this mandatory provision will cause serious prejudice to the right of the parties. In the instant case, the parties came to the Court in 1974 and till today for the last over 23 years we are at the preliminary stage only. Greatest prejudice has been caused to the parties and the valuable time of the Court was not properly utilised, by the courts below. The subordinate courts must therefore render findings on all issues to avoid delay and also to make the parties to understand and appreciate their respective rights.
6. In this case the suit for redemption is held to be barred by the Courts below. The plaintiff's case was that the mortgage was dt. 13.11.1873. The plaintiff further submitted that the right of redemption was sold by one of the heirs of the family in favour of the 31st defendant, who had filed O.S.No. 498/51, and the properties mentioned in the schedule 'B' belong to the family were redeemed by the decree of the High Court of Mysore at Bangalore. It was also claimed that the property was redeemed and A.H. Pinto the 31st defendant took delivery of the property in pursuance of the decree for redemption. It was further claimed that the said Pinto can at best be a co-mortgagor along with the other family members and if the 31st defendant has redeemed the entire mortgage then this plaintiff is also entitled to a share.
7. The cause of action paragraph in the plaint is worthwhile to the noted;
'The cause of action for the suit arose on 13.11.1973, and subsequently thereafter in 1927 where the equity of redemption was sold and in 1951 when O.S. 498/51 was filed and on 13.9.1956 when the property was delivered in pursuance of the decree of Civil Judge Mangalore and also on 22.4.1969 when the matter became final by the Judgment of the High Court of Mysore at Bangalore and since in Vittal Kasba Village, Bantwal Taluk, within the jurisdiction of this Court.'
8. Only the 31st defendant filed the written statement, inasmuch as, the plaintiff and defendants 1 to 10 are members of the undivided Aliyasanthana family which was owner of the mortgaged property. The contention in the written statement was:
'Aithappa had executed the mortgage of equity of redemption both in his individual capacity as the adalthedar and therefore the individual members of the said family are not entitled to question the same. He has further pleaded that Aithappa executed mortgage deed dated 8.12.1917 in favour of Vasudeva Mayya in turn assigned to Mukunda Prabhu as per assignment deed dated 27.9.1922 and the said Mukunda Prabhu had filed a suit in O.S.No. 728/1922 for sale of equity of redemption on the failure of the Aithappa, the adalthedar of the family of Lakshmi and obtained the decree and the said decree was assigned to one Narasimha Naik who filed Execution Case No. 1118/1926 in O.S.No. 728/1922 brought the right of equity of redemption of Aithappa's family for sale and in the court auction Shivaraya Pai purchased the same which was confirmed as per sale certificate dated 21.2.1927. Thus, Shivaraya Pai having become absolute owner, the other members of the family of Lakshmi lost their right in 1927 and therefore the present suit is barred by limitation. His further plea is that the right of redeem the equity of redemption did not subsist after 1927 as the entire properties vested with auction purchaser in 1927.
It is further pleaded that the equity of redemption of the family of Aithappa is barred by resjudicata in view of the decision in O.S. 498/1951 and this right to equity of redemption was purchased by him from Shivaraya Pai under sale deed dt. 6.9.1951 and therefore the plaintiffs and the other defendants have lost their right by adverse possession and limitation.
It is specifically pleaded that he having redeemed in his capacity as the sole owner of equity of redemption, the mortgage being of 1873, the present suit being filed in 1974 is barred by limitation.'
9. The Trial Court took up the issue of court fee and limitation. But holding the issue of court fee in favour of the plaintiff, considered that the suit for redemption must have been filed on or before 13.11.1933. The lower Court also accepted following legal dictum that the right of the original plaintiff as co-mortgagor to redeem the property is not in dispute. On the 31st defendant having purchased right of redemption, even if the plaintiffs have a right they should redeem in 30 years under the new limitation Act or seven years from the commencement of the Limitation Act i.e., on or before 1.1.1971. But the present suit was filed on 10.1.1974. The plaintiff's contention that the 31st defendant redeemed the mortgaged debt on 3.4.1962 and not on 13.9.1966, and 12 years from 3.4.1962 will be 3.4.1974 and the present suit was filed on 10.1.1974, the suit is well within limitation, was not accepted by the Trial Court.
10. On the question whether the date is to be taken as 13.9.1956, when the property was delivered in pursuance of the decree of the Civil Court finally and also on 22.4.1962 when the matter become final by the judgment of the High Court of Mysore at Bangalore, the Trial Court held that 3.4.1962 when the 31st defendant was directed to put back the excess property taken delivery by him cannot be taken as the date for the cause of action. Holding that the final decree was confirmed in Second Appeal No. 37/56 by the High Court on 21.4.1960, the Trial Court held that the suit filed on 17.1.1974 is beyond 12 years.
11. The appellate Court permitted amendment of the plaint to include the date of cause of action as 3.4.1962, 3.4.1962 was taken as the date on which the final decree was passed in Regular Interlocutory Application No. 1391/60. Despite the opposition, the later date was a mere modification of the decree, the amendment was allowed by the first appellate court. Once the amendment is allowed, the natural consequence is that the suit filed on 17.1.1974 must be held to be in time. But yet the appellate Court merely copied down the reasoning of the trial Court and upheld the dismissal.
12. It was rightly contended before me that the 12 years period should have been computed as one from 3.4.1962 and not from 21.4.1960. Consequently, the suit is in time.
13. Admittedly, the full satisfaction of the decree was recorded only on 3.4.1962, as per the order passed by the Learned Munsiff. The limitation of 12 years for a suit for contribution by a co-mortgagor start from the date on which the co-mortgagor pays the whole of the mortgage debt. Therefore, the suit filed within 12 years from 3.4.1962 under Article 62 of the Limitation Act cannot be held to be barred by limitation. In as much as the redemption by the co-mortgagor is deemed to have taken place only on 3.4.1962, namely, the date on which the satisfaction of the decree was recorded, the suit must be held to be in time. The dictum of the Supreme court in VALLAMMA v. SIVATHANU, : [1980]1SCR354 , is directly on the point. It has been held that where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the non-redeeming co-mortgagor to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as long as the latter's right to contribution subsists. This right of the non-redeeming co-mortgagor is purely as equitable right, which exists irrespective of whether the right of contribution which the redeemed co-mortgagor has as against the other co-mortgagor, amount to a mortgage or not. Further, in para 34, this is what has been observed by their Lordship:
'Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagor's property as security to get himself reimbursed for the amounts paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non-redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against other co-mortgagor.'
So, from the aforesaid decision, it is clear that non-redeeming co-mortgagor can file a suit for possession of his share on payment of the proportionate amount of the mortgage debt either within the period prescribed for a suit for contribution by the redeeming co-mortgagor against other co-mortgagor.
14. In the case reported in VALLIAMMA v. SHIVATHNU, : AIR1964Mad269 , the Full Bench of the Madras High Court was dealing with Article 148 of the Limitation Act, 1908. That was also a suit by co-mortgagor for recovery of his share of hypothec from his co-mortgagor who is in possession after discharging mortgage. Their Lordships also referred to Section 92 of the Transfer of Property Act. At para No. 15, this is what has been observed by their Lordships:
'From what I have said above, it will be clear that in a case like the present the co-mortgagor who paid off the mortgage liability obtains principally a right to contribution. He obtains by way of subrogation the security possessed by the mortgagee to the extent necessary for realising the excess amount paid by him from out of the mortgaged property of the other co-mortgagors. In case where the mortgage is a possessory one, the redeeming co-mortgagor will obtain in such a case, on his obtaining contribution from his co-mortgagors, he could in justice, deliver possession of the properties, belonging to the mortgagor. In other words, his right to obtain contribution will raise a corresponding obligation to deliver possession of the property on payment by each one of the co-mortgagors, his share of the mortgage money. Therefore, so long as the right to contribution subsists in the redeeming co-mortgagor will have a corresponding right to pay up his share and get delivery of possession of his properties. This is plain equity and will exist independently of the fact whether the right of contribution which the redeeming co-mortgagor has as against the other co-mortgagor amounts to a mortgage or not. Therefore, where a redeeming co-mortgagor has a period of 12 years under Article 132 of the Limitation Act for recovery from his other co-mortgagors the aliquot share of the mortgage money, there should be a corresponding right in the no deeming co-mortgagors to obtain possession of the properties on payment of their share of the mortgage money within that period. From the foregoing, it will be plain that there will be two periods, within which a non-redeeming mortgagor can obtain his property from his co-mortgagor can obtain his property from his co-mortgagor who had redeemed, the first is based on the rule of subrogation and the second is the correlative obligation in the redeeming co-mortgagor to give up the property belonging to his co-mortgagor on being paid the money due by him. In the former case, where the mortgage is possessory the period of limitation will be governed by Article 148 (Article 136 of the Travancore Limitation Regulation) and the starting point for limitation will be the same as for the original mortgage redeemed. In the letter case, the non-redeeming co-mortgagor will have a period of 12 years from the date of redemption of the original mortgage by the other co-mortgagor. It will be open to the non-redeeming co-mortgagor to take advantage of any one of the these periods which ever is to his advantage. This view will obviate the hardship and anomaly pointed out earlier'.
15. In the case reported in MANGE v. DES RAJ, AIR 196 Punjab 270 the Division Bench of the Punjab High Court was dealing with Article 132 and 148 of the Limitation Act, 1908 and Section 92 of the T.P.Act. That was also a cases of right of non-redeeming co-mortgagor to contribute and take his share from the redeeming co-mortgagor in possession. Their Lordships of the Punjab High Court followed the decision reported in case, referred to above. In paras 8 and 10, this is what they have observed:
'The learned majority judges agreed that since under Article 132 of the Limitation Act, the redeeming co-mortgager was given a period of Limitation of 12 years for a suit to recover his proportionate share from any co-mortgagors, the same period of 12 years would be the period in which a non-redeeming co-mortgagor to accept his share of the mortgage money and give him his share in the mortgaged property, but this would be subject to the period of limitation of 60 years for redeeming a mortgage contained in Article 148 The main point of the decision was that the redemption by one co-mortgagor would not start a further period of 60 years for any co-mortgagors to assert their rights in the redeemed property. It was contended in the present case that the period of 60 years from the date of original mortgage shad expired before the plaintiff's suit was filed in 1960 and therefore, they had become owners by adverse possession of the portion of the land which had been under mortgage.'
16. In view of the above dictum, it must be held that the suit is in time.
17. Once it is held that the suit is in time and the redemption has taken place, then the other question of partition automatically follows. The 31st defendant who has purchased equitable redemption from one of the sharers will be entitled to that share along with the plaintiff.
18. As there is no dispute regarding the shares among the plaintiff and the defendants, the 31st defendant becomes a sharer along with the other parties to the suit. The 31st defendant claims to have purchased from Shivaraya Pai's heirs the right of equity of redemption on 6.9.1951. The purchase of the property can at best affect the shares of Shivaraya Pai. Therefore, for the purpose of ascertaining the share and for passing a decree for partition, this case has to go back to the first appellate Court. Therefore, confirming the redemption and the right of partition, only for the purpose of ascertaining the correct shares of the parties, the case is remanded to the first Appellate Court.
19. In the result, the judgment and decrees of the Courts below are set aside and the second appeal is allowed. The parties are directed to appear before the first appellate Court on 19.1.1998.