Case: Sant Lal Mahton Vs. Kamala Prasad

This appeal, which was originally taken to the Judicial committee, on special leave, granted by an Order in Council dated August 2, 1946, now stands transferred to this by reason of the abolition of the jurisdiction of the Privy Council. It is directed against a judgment and decree of Division Bench of the Patna High Court dated March 17, 1944, affirming, on appeal, a decision of the Subordinate Judge of Purnea dated February 27,appellants before us are the first party defendants in a suit, commenced by the plaintiffs respondents, for enforcement of a simple mortgage bone, by sale of the mortgaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence on the record, that the bond sued upon was not legally attested and hence could not rank as a mortgage bond. On this finding he refused to make a decree for sale of the mortgaged property on favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did not become time-barred by reason of the fact that there were several payments made by the defendants towards their satisfaction of the debt, which attracted the operation of section 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors the the High Court of Patna, but no appeal or cross-objection was filed by the plaintiffs against the refusal of the trial Court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High Court, consisting of Fazl Ali C.J. and Beevor J., and the principal point canvassed on behalf of the defendants appellants was, that the trial court was wrong in holding that the plaintiffs claim for a personal decree was not barred by time. The argument put forward was that the suit, as one for personal relief against the debtors, was barred on the expiry of 6 years from the date for repayment mentioned in the bond and the part payment relied upon by the plaintiffs in their plaint were ineffectual for the purpose of extending the period of limitation under section 20 of the Indian Limitation Act. The High Court on hearing the appeal came to the conclusion that the bond in suit was duly attested and was the view taken by the trial court on the question of attestation could not be sustained on the evidence on the bond, the suit, as one for enforcement of a mortgage, was in the opinion of the learned Judges, quite within time, and it was not necessary in these circumstances to call in aid the provision of section 20 of the limitation Act for the the purpose of extending the period of limitation. The learned Judges held, however, that as the plaintiffs had not preferred any appeal or cross-objection attacking that part of the judgment of the trial Judge which dismissed their claim for a sale of the mortgaged property, they were unable to pass a mortgage decree in their favour. The result was that the decree made by the trial Judge was affirmed. It is the propriety of this decision that has been challenged before us in this appeal.

Reasoning: It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two conditions are essential : first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the prayer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, there fore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (1).But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegation made therein. The legislature has expressly declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided there fore in the first schedule to the Limitation Act. If the plaintiffs right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the court might not hold the bond to be properly attested. In these circumstances, they prayed for an amendment of the plaint which was cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph the following words were addedsuit is saved from limitation so far as the personal remedy is concerned and the payments were made by the defendants on different dates as mentioned Schedule Aamendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment nor proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in thisthese circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.