1. On the 28th March 1871, appellants' father executed a mortgage in favour of respondents' father. The instrument of mortgage, Exhibit A, purported to place the mortgaged property in the mortgagee's possession, and provided for the usufruct being applied first in liquidation of the stipulated interest and then in reduction of the principal debt. It contained also a covenant to repay the balance within four years and then proceeded to state that in default of payment on the due date, the mortgagor was to give up the mortgaged property to the mortgagee, as if it was sold to him. The plaint stated that though the mortgagor placed the mortgagee in possession, yet the former unlawfully resumed psssession in 1874 without repaying the mortgage debt, and prayed for a decree either for sale or foreclosure. It was contended on appellants' behalf that the mortgage debt was discharged, and that the suit was barred by limitation. On appeal, the Subordinate Judge at Cocanada found that the debt was not paid off, and passed a decree for foreclosure, observing that the suit was not barred by limitation. Hence this appeal.
2. It is first urged that the suit is governed by Article 144 of the second schedule of the Act of Limitations. The transaction evidenced by document A is a mortgage by way of conditional sale as denned in Section 58, Clause (c) of Act IV of 1882, and the plaint prays also for a decree for foreclosure. The suit is there-fore governed by Article 147, and not barred by limitation. It is true that the plaint alleges that the mortgagee was dispossessed in 1874, while the suit was instituted in 1888. But it must be remembered that the suit was brought to recover possession, not on the footing of the usufructuary mortgage, but by reason of the foreclosure decree which is claimed under Section 67 of Act IV of 1882. It is not necessary that the plaintiff should be in possession of the mortgaged property when he claims a decree for foreclosure. Though a mortgage by conditional sale is generally accompanied by transfer of possession, yet it is not always the case. It is also clear from Section 87 that a decree for foreclosure may contain a direction for delivery of possession when necessary. The contention, therefore, that respondents lost their right to claim foreclosure by not recovering back possession on the footing of the usufructuary mortgage within 12 years from the date of dispossession cannot be supported.
3. It is next contended that the respondents are not entitled to obtain a decree without producing a certificate as required by Act VII of 1889. We are unable to accede to this contention either, as the suit was instituted before Act VII of 1889 came into force. The general rule, as stated in Wright v. Hale 6 H. & N., 227 and in Kimbray v. Draper L.R. 3 Q.B. 160 is that when an enactment takes away a vested right, it does not apply to existing rights, but when it deals with procedure or regulates practice only it applies to all actions pending as well as future. In C.M.P. 416 of 1889, it was held that the Act did not apply to an application to execute a decree which was pending at the date of the passing of the Act [See 'Rama Rau v. Chellayamma, I.L.R. 14 Mad. 458 Reporter's note]. In the case before us the plaintiffs had a vested right to a decision in the suit already instituted by them in accordance with the law as it existed when the suit was instituted, and that right would certainly be curtailed if the Act subsequently passed were applied to it. We may also observe that the decree appealed against is for foreclosure of the mortgage and not one for the paymemt of a debt. The suit would be barred if it were regarded as one to recover the debt, and the direction to pay in six months contained in the decree is given not to fix a personal liability for the debt, but to enable the defendants to save their right of redemption and to prevent its extinction by foreclosure. This second appeal cannot be supported and we dismiss it with costs.