Mortgagee purchase outside mortgage-sale procedure does not extinguish redemption; suit for redemption remained within limitation.

A usufructuary mortgage preserves the mortgagor's right of redemption under Section 60 of the Transfer of Property Act unless lawfully extinguished, and a mortgagee cannot defeat that right by obtaining title through a sale connected with the mortgage outside the procedure required by Order XXXIV Rule 14 CPC. Such an advantage is treated under Section 90 of the Indian Trusts Act as held for the mortgagor's benefit, so redemption remains available. A suit for redemption is governed by Article 61 of the Limitation Act and, being filed within 30 years from accrual of the right to redeem, was not time-barred.

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Issues: (i) Whether the mortgagee's purchase of the mortgaged property in execution of a decree for arrears of rent, without instituting a suit for sale in enforcement of the mortgage, extinguished the mortgagor's right of redemption; and (ii) whether the suit for redemption was within limitation.

Issue (i): Whether the mortgagee's purchase of the mortgaged property in execution of a decree for arrears of rent, without instituting a suit for sale in enforcement of the mortgage, extinguished the mortgagor's right of redemption.

Analysis: A usufructuary mortgage gives the mortgagor a continuing right to redeem under Section 60 of the Transfer of Property Act, 1882, unless that right is extinguished by act of parties, decree of court, or other recognised mode of extinction. Where a mortgagee seeks to bring mortgaged property to sale on a claim arising under the mortgage, Order XXXIV Rule 14 of the Code of Civil Procedure, 1908 prohibits sale otherwise than by a suit for sale in enforcement of the mortgage. The purchase here arose from a decree connected with the mortgage arrangement and not from a valid suit for sale under Order XXXIV Rule 14. In such circumstances, the mortgagee's advantage obtained through his position as mortgagee attracts Section 90 of the Indian Trusts Act, 1882, and the purchase is held for the mortgagor's benefit rather than as an absolute extinction of the mortgage.

Conclusion: The right of redemption was not extinguished, and the mortgagor's suit for redemption was maintainable.

Issue (ii): Whether the suit for redemption was within limitation.

Analysis: For a suit by a mortgagor to redeem or recover possession of immovable property mortgaged, Article 61 of the Limitation Act, 1963 prescribes a period of 30 years from the date when the right to redeem accrues. Since the mortgagee's auction purchase occurred in 1952 and the redemption suit was instituted within the prescribed period, the claim was not barred by limitation.

Conclusion: The suit was within limitation.

Final Conclusion: The mortgagor's right to redeem survived the auction sale, the purchase was treated as held in trust for the mortgagor, and the redemption suit was timely; accordingly, the challenge to the decree for redemption failed.

Ratio Decidendi: A mortgagee who acquires an advantage through his position in derogation of the mortgagor's rights cannot use that advantage to extinguish redemption, and a sale contrary to the mortgage-specific procedure is treated as held in trust for the mortgagor, leaving the right of redemption intact.

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