1. This appeal is directed against an order of dismissalmade on an application under Order XXXIV, Rule 5, of the Code of CivilProcedure for a final decree in a mortgage suit. The preliminary decree wasmade on the 6th April 1910 and the mortgagor was thereby allowed six months topay the amount, found due. The present application for final decree waspresented on the 2nd October 1917. An objection was thereupon taken that theapplication was barred by limitation. The mortgagees decree-holders urged thatthey were entitled to the benefit of Section 20, Sub-section (2) of the IndianLimitation Act. The Courts below have overruled this contention and dismissedthe application.

2. The case for the mortgagees decree holders is that in1912 the mortgagor agreed to transfer the equity of redemption to them insatisfaction of their dues under the mortgage decree, that in pursuance of thisagreement they entered into possession of the mortgaged properties and thatsince then they have held possession, though the mortgagor did not carry outhis agreement by execution and registration of the proper deeds. On the otherhand, on the 1st April 1-917 the mortgagor transferred the property to thefifth defendant, who dispossessed the plaintiffs. Daring the period that the plaintiffswere thus in possession they received the rents and profits, and theircontention is that this is sufficient to save the present application from thebar of limitation under Section 20, Sub-section 2 of the Indian Limitation Act.That sub-section provides that "Where mortgaged land is in the possessionof the mortgagee, the receipt of the rent or produce of such land shall bedeemed to be a payment for the purpose of Sub-section (1)." Sub-section(1) provides that, "Where interest on a debt...is, before the expirationof the prescribed period, paid as such by the person liable to pay the debtor...by his agent duly authorised in this behalf,...a fresh period oflimitation shall be computed from the time when the payment was made." Thefifth defendant controverts this argument on the ground that as the plaintiffsprofessed to be in possession, not as mortgagees, but as owners of the disputedproperty, the receipt of the rent and produce of the land by them cannot bedeemed to be a payment to the mortgagee within the meaning of Section 20,Sub-section (1), We are of opinion that this contention is not well founded.

3. In the first place, Section 20, Sub-section (2), does notrefer expressly to the intention of the party who receives the rent or produce,and may well be construed to apply wherever mortgaged land is, in fact, in thepossession of the mortgagee. In such an event the receipt of the rent andproduce of the land may be deemed a payment for the purpose of Sub-section (1).In the second place, where a mortgagee has obtained possession under an invalidagreement for sale his position may be deemed to be that of a mortgagee, whenit is established that the agreement was inoperative in law, and he may becalled upon to account for the rents and profits as if he were the mortgagee inpossession. In support of this proposition reference may be made to thedecision of Stuart. V.C., in Robertson v. Norris (1858) 1 Giff. 421 : 114 R.R.486 : 4 Jur. (N.S.) 155 : 65 E.R. 983; see also Bishop v. Sharp (1704) 2 Vern.469 : 23 E.R. 902. This does not militate against the proposition that, as inBlennerhassett v. Day (1811) 2 Ball & B. 104 : 53 R.R. 79 and Page v.Linwood (1837) 4 Cl. & F. 399 : 7 E.R. 154, a mortgagee is not bound toaccount for profits received by him out of the mortgaged property, if they werereceived in an altogether different character [Parkinson v. Hanbury (1967) 2H.L. 1 : 36 L.J. Ch. 292 : L.T. 243 : 15 W.R. 642]. The same view was adoptedin Ram Awatar v. Tulsi Prosad Singh 11 Ind. Cas. 713 [LQ/CalHC/1911/369] : 14 C.L.J. 507 : 16C.W.N. 137, Ariyaputhira Padayachi v. Muthukumarasawmy 15 Ind. Cas 343 : 37 M.423 : 23 M.L.J. 339 : (1912) M.W.N. 854 : 18 M.L.T. 425, and Thotakura Govinduv. Pecakayala Mallayya 31 Ind. Cas. 678 [LQ/MadHC/1915/465] , In the second case, AriyaputhiraPadayachi v. Muthukumarasawmy 15 Ind. Cas 343 : 37 M. 423 : 23 M.L.J. 339 :(1912) M.W.N. 854 : 18 M.L.T. 425, a mortgagee obtained possession of themortgaged premises on the basis of an invalid contract for sale of the equityof redemption. The mortgagor subsequently instituted a suit for redemption. Themortgagee set up a title by adverse possession. The mortgagor pleaded that asthe contract for sale had proved abortive, the mortgagee could have been inpossession only in his character as mortgagee and that such possession couldnot be deemed in law adverse to the mortgagor. This contention was upheld andit was ruled that the rights of the parties must be determined on the basis ofthe events as they had happened, and not on their intentions which had not beencarried into effect. In the case before us, the contention of the respondent isself-contradictory. If he maintains that there was a valid contract for sale ofthe equity of redemption and that the title of the plaintiff thereunder wasunimpeachable, on the principle that equity regards that as done which shouldhave been done [Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T.858 : 31 W.R. 109, Maddison v. Alderton (1883) 8 App. Cas. 467 : 52 L.J.Q.B.737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821, Syam Kishore v. Umeth Chandra 55Ind. Cas. 154 : 31 C.L.J. 75 : 24 C.W.N. 463] he has clearly acquired no validtitle to the property by his purchase on the 1st April 1917, because, on thisassumption, his vendor had no subsisting interest on that date to transfer. Onthe other hand, if he maintains that the contract for sale was not legallycarried into effect, that the mortgagee never obtained a title to the equity ofredemption so as to become full owner of the property, he could have been inpossession only as a mortgagee and the receipt of the rents and profits by himmust attract the operation of Section 20, Sub-section (2). A party litigant, itis well settled, cannot be permitted to take up inconsistent positions in Courtto the detriment of his opponent: Giris Chandra Bit v. Bipin Behari Khan 44Ind. Cas. 159 : 27 C.L.J. 535, Bhaja Chowdhury v. Chuni Lal Marwari 5 C.L.J. 95: 11 C.W.N. 284. The fifth defendant was entitled to make his choice from thetwo alternatives mentioned; either of them is fatal to his defense. We holdaccordingly that the plaintiffs must be deemed to have been in possession asmortgagees and that the present application is not barred by limitation,inasmuch as Section 20, Sub-section (2) of the Indian Limitation Act isapplicable.

4. The result is that this appeal is allowed, the decree ofthe District Judge set aside and the case remitted to the Court of firstinstance to be re-tried. We are informed that none of the questions on themerits, in controversy between the parties, has been yet investigated. TheCourt will consequently proceed to determine the matters in issue between them.The appellant is entitled to his costs both in this Court and in the Court ofthe District Judge.

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Bama Charan Chakravarti and Ors. vs. Kishore Mohan Roy and Ors. (10.08.1921 - CALHC)