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ishram Govinda Patil Vs. Trimbak Ganpat - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 847 of 1925
Judge
Reported inAIR1928Bom264; (1928)30BOMLR675
Appellantishram Govinda Patil
RespondentTrimbak Ganpat
DispositionAppeal dismissed
Excerpt:
.....by instalments-instalment not paid recoverable by sale of mortgaged property-suit to enforce payment of instalments-limitation -acknowledgment.;an award was made between the parties, on october 20, 1913, whereby a certain sum was made payable by annual instalments in december of each year, and on failure to pay by the defendant the mortgaged property could be sold. no decree was taken in term a of the award, in a subsequent suit between the parties, the defendant pleaded, on september 27, 1920, that the mortgage had merged in the award. on april 10, 1922, the plaintiff sued to recover certain instalments under the award and prayed that in default of payment the mortgaged property should be sold subject to a charge 'for the instalments which were still due. the defendant raised the..........had arisen in the month of december 1914, when the first instalment was payable, and that this suit was time-barred. he said that it must be treated as a suit to enforce the terms of the award and should have been brought within six years from the time the right to sue accrued under article 120 of the indian limitation act. the first class subordinate judge, on appeal, held that the suit was in time. he agreed with the lower court that the suit was one which under the decision in rajmal girdharial v. maruti shivram (1920) i.l.r.r. 45 bom. 329: bom. l.r. 1377 was governed by article 120 of the indian limitation act. he than goes on to say:-but the real question in the present case is from what date the period of six years is to be computed. if the award had ordered payment of money.....
Judgment:

Fawcett, J.

1. The plaintiff, on October 20, 1913, had an award passed in his favour, under which a certain sum was to be paid by annual instalments in December of each year, and it was provided that if the defendant failed to pay as above, the plaintiff was at liberty to sell the mortgaged property according to law and thus recover the amount found due. He had made an application to have the award filed in Court, but subsequently withdrew it. He then brought a regular suit to enforce the mortgage, but the defendant objected that the mortgage had become merged in the award and the suit was dismissed. Subsequently, on April 10, 1922, he brought the present suit to recover a sum of of Rs. 1,000 due in regard to certain instalments, and he prayed that in default of payment by the defendant it should be recovered by the sale of the mortgaged property, subject to a charge for the instalments, which were still due. The trial Judge held that the cause of action had arisen in the month of December 1914, when the first instalment was payable, and that this suit was time-barred. He said that it must be treated as a suit to enforce the terms of the award and should have been brought within six years from the time the right to sue accrued under Article 120 of the Indian Limitation Act. The First Class Subordinate Judge, on appeal, held that the suit was in time. He agreed with the lower Court that the suit was one which under the decision in Rajmal Girdharial v. Maruti Shivram (1920) I.L.R.R. 45 Bom. 329: Bom. L.R. 1377 was governed by Article 120 of the Indian Limitation Act. He than goes on to say:-

But the real question in the present case is from what date the period of six years is to be computed. If the award had ordered payment of money immediately, then certainly the suit not being within six years would have become barred by time. But the award made the money payable by instalments and the right to recover the instalment amount would accrue on the date of each instalment. Sis years' limitation would thus have to be computed from the date on which each instalment fell due. There is no clause in the award that the whole sum was to become due on default of any instalments. Article 120 lays down that the six years of limitation are to be computed from the date on which the right to sue accrued. The award having made the money payable by instalments to be paid on particular dates, the right to sue for those instalments accrued on the dates of the instalments, and it cannot be said that the right to sue accrued even for subsequent instalments on the date of the award itself.

2. Farther he says :-

The suit cannot be stricly called a suit to enforce the award, It is a suit to recover money awarded by the award and charged by the award on immoveable property, and even twelve years' limitation under Article 132 of the Limitation Act would apply.

3. This view has been controverted in a second appeal, which has been brought by the defendant. But the view taken by the First Class Subordinate Judge is very strongly supported by the Privy Council ruling in Maung Sin v. Ma Tok : (1927)29BOMLR1014 . In that case the respondent had, in 1916, obtained against the appellant, her husband, a decree in the terms of an award. The decree provided that certain properties were to remain in the possession of the defendant 'who will pay to the plaintiff annually the sum of Rs. 2,000 in the month of Kason, on default of the payment of the same (Rs. 2,000 annually) the said properties will be made over to the plaintiff.' The payments for 1923 and 1924 not having been made, the respondent applied in 1924 to execute the decree in respect of them, also by delivery of possession of the properties on the default so made, Its was held that the application was not barred as to the payments for 1923 and 1924, having regard to Clause (7) of Article 182, nor as to delivery of possession since upon the true construction of the decree the right to possession arose on a default in making any annual payment, Article 182, Clause (7), says time begins to run :-

(where the application is to enforce any payment which the decree or order directs to be made at a certain date) from such date.

4. I think that decision is directly applicable to the present case, The present suit is, in effect, to enforce a payment which the award directs to be made at certain dates, to use the language of Clause (7) of Article 182; and the view taken by their Lordships as regards the time from which limitation begins to run in the case of instalments fixed by a decree is equally applicable to the case of instalments fixed by an award. The view taken by the Subordinate Judge is, therefore, in my opinion, perfectly correct.

5. In regard to two instalments which are not within six years of the suit the First Class Subordinate Judge has held that having regard to the clear admission of the liability under the award involved in the plea of the defendant in the first suit that the mortgage had merged in the award, there was an acknowledgment of liability to pay these instalments made by the defendant on September 27, 1920, which suffices under Section 19 of the Indian Limitation Act, to save the bar of limitation even as regards those instalments. I see no sufficient reason to differ from that view.

6. As regards the applicability of Article 132, as at present advised, I can see no sufficient reason for saying that that Article would not, in fact, cover the present suit, in so far as the award itself makes these instalments a charge upon the mortgaged property, so that the suit is one to enforce payment of money charged upon an immoveable property. But I think it safer to decide the suit upon the view which has already been taken by this Court that Article 120 applies if no other Article is applicable. If Article 132 applies, then, in any case, the suit is in time. But if Article 120 applies, then also (with the aid of this acknowledgment that I have mentioned) the plaintiff's suit is in time. I would, therefore, dismiss the appeal with costs.

Mirza, J.

7. I agree,


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