Article 62 governs suits to enforce payment of money secured by mortgage or otherwise charged upon the immovable property. In Vala Punja v Puna Mavji, (AIR 1963 Guj. 112), it has been held that the Article 62 is applicable to all suits for sale or foreclosure regarding mortgage as well as to suits to enforce charge within the meaning of Section 100 of the Transfer of Property Act.
Art. 62 is attracted only in respect of a mortgage or a charge on immovable property. The Limitation Act, 1963 does not define ‘immovable property’. So, the definition given in the General Clauses Act will apply. According to clause (25) of Section 3 of the General Clauses Act, “Immovable Property shall include land benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.” Section 3 of the Transfer of Property Act also says, “Immovable Property does not include standing timber, growing crops or grass.
” It consists of land and things attached to the earth or permanently fastened to anything which is attached to the earth. The municipal house tax and water tax being a first charge on the property subject to such tax, the suit to recover such tax attracts the Article 62. In Lai Chand v. Municipal Corporation of Delhi, (AIR 1988 Del.
220), it has been held that a suit to claim arrears of house tax is governed by the Article 62 of the Limitation Act, 1963. In Manimala v. Indubala, (AIR 1964 SC 1295), it has been held that a suit to enforce a mortgage is governed by Art. 62 and has to be file within 12 years from the date when the money became due unless the period of limitation prescribed has been extended under any provision of the Limitation Act. In Bhabatmal v. Syed Abdul Hamid, (AIR 1949 Nag. 103), it has been held that the fact that money secured is payable by instalment and there was a default clause making the whole balance payable at once in case of default, does not make any difference and the Art.
62 will govern such suit to recover the instalments charged with immovable property. In Gol Krishna v. Kessandas, (AIR 1964 MP 158), it has been held that the mortgage property had been sold in execution and the objection of the mortgagor against the execution was dismissed as the sale had already taken place, the mortgagor’s only remedy is to enforce the mortgage against the mortgagee and the auction purchaser and that suit will attract the Art. 62. In a simple mortgage, there being no transfer of ownership, the simple mortgagee can bring the mortgage property to sale only through Court. To such a suit Art. 62 is attracted.
In Life Insurance Corporation of India v. Ramji Kewar, [AIR 2001 NOC 214 (MP)], it has been held that when the equitable mortgage was created in favour of creditor Corporation by the debtor by way of collateral, security, then the suit for recovery of such debt by the Corporation shall attract Art. 62 and suit would be within time if filed within 12 years of such loan received by collateral security. A recital in the Usufructuary mortgage that the mortgagor will pay the principal after three years and redeem the property amounts a covenant to pay and a suit for sale of the security will lie and to such suit Art. 62 will be attracted. The characteristics of a Usufructuary mortgage are — ‘(i) possession of the property is delivered to the mortgagee; (ii) the mortgagee is entitled to get rents and profits in lieu of interest or principal or both; (iii) no personal liability is incurred by the mortgagor; and (iv) the mortgagee cannot sue for foreclosure or sale. When the mortgagee under the mortgage deed is entitled to be in possession till the payment of the mortgage money the transaction is a usufructuary mortgage.
A combination of simple and Usufructuary mortgage is an anomalous mortgage. So a Usufructuary mortgagee with a personal covenant to pay is an anomalous mortgage. In such a case the mortgagee is entitled to sue for sale of security when cause of action to file such suit arises and Art. 62 will apply to such a suit.
In Bimal Kumar v. Calcutta Corporation, (AIR 1978 Cal. 420), a suit by Calcutta Corporation for the recovery of the amount payable on account of arrears of consolidated rate is governed by Article 62 of the Limitation Act, 1963 as the consolidated rate is a first charge on the premises, but the limitation does not start until the bills are presented to the rate-payer. In Lakshmi Chand v. Municipal Corporation of Delhi, (AIR 1988 Del. 220), it has been held that so far as the recovery of property tax under Delhi Municipal Corporation Act is concerned the said property tax being the first charge which statutory charge, for recovery of such arrear tax, Art.
62 of the Limitation Act will be attracted and 12 years limitation is available. In Mang v. Desraj, (AIR 1967 Punj.
270), it has been held that a co-mortgagor by putting the mortgage money acquired independently of Section 95 a charge under Section 82 and Section 100 in regard to the amount paid by him in respect of the mortgage over and above the share and the suit for contribution by such redeeming co-mortgagor for contribution attracts Art. 62 of the Limitation Act and the limitation commences from the date of the payment and not from the date when the original mortgage money became payable. The period of limitation for a suit filed by the mortgagee on simple mortgage is 12 years from the date of mortgage under Art. 62 of the Limitation Act, 1963.