1. This is a plaintiffs' appeal against a decree dismissing a suit for sale on the basis of a simple mortgage, dated 19th December 1916 on the ground that the suit was barred by limitation. The plaintiffs relied on an acknowledgment contained in a sale deed, dated 5th December 1928, and pleaded that they had a period of twelve years from that date within which to file the suit. This suit was filed on 30th August 1937 and the plaintiffs' contention was that the suit was well within time. On 19th December 1916, Nek Ram, defendant 1, borrowed a sum of Rs. 3000 on the basis of a simple mortgage from the plaintiffs and mortgaged two villages, Daryaopur and Laharpur. On 22nd August 1928, Cheda Lal, defendant 2, who had a simple money decree against Nek Ram, defendant l, in execution of that decree attached Laharpur, one of the villages included in the mortgage. The property was put to sale in execution of the simple money decree and on 20th June 1929 village Laharpur was purchased by Cheda Lal, the attaching creditor. Cheda Lal's first contention is that there was no acknowledgment in the sale deed, dated 5th December 1928, which could save limitation. His next contention is that in any case he having attached the property on 22nd August prior to the sale of 5th December 1928, any acknowledgment contained in the sale deed could not operate to save limitation as against him and further that the sale deed must be deemed to be void under Section 64, Civil P.C. The trial Court held in favour of the defendants on both the points. The plaintiffs then appealed and the lower appellate Court dismissed the appeal on the ground that the acknowledgment contained in the sale deed did not save limitation as against Cheda Lal.
2. The relevant portion of the sale deed, which is relied on as an acknowledgment, is quoted in the judgment of the trial Court. Nek Ram, the mortgagor, admitted that a sum of Rs. 5000 was due to the plaintiffs under a simple mortgage for Rs. 3000 and he was setting off that: amount as against the sale consideration. The trial Court was of the opinion that there was no valid acknowledgment as Nek Ram did not say that he was paying off a subsisting liability. It is true that a man may pay off a barred debt if he wants to and any acknowledgment of a barred debt would not save limitation under Section 19, Limitation Act, but in this case we know that the acknowledgment related to a mortgage which was executed on 19th December 1916. Moreover in the absence of anything to the contrary when a debtor makes an acknowledgment of his liability to pay a debt it would ordinarily mean that he was admitting a subsisting liability to pay. 'We, therefore, do not agree with the trial Court that there was no acknowledgment in the sale deed.
3. The other point that by reason of Section 64, Civil P.C. the sale must be deemed to be void and, therefore, the acknowledgment cannot be relied on as against the attaching creditor has no force. Under S.19, Limitation Act, an acknowledgment must be by the party against whom such property or right was claimed, or by some person through whom he derives title or liability. It is now well settled that an auction-purchaser derives his title through the judgment-debtor, and, therefore, any acknowledgment by Nek Ram will be deemed to be an acknowledgment by a person through whom Cheda Lal derives his title and the acknowledgment would be a good acknowledgment against him under Section 19, Limitation Act. As regards the contention that under Section 64, Civil P.C. the sale deed is void, all that Section 64 lays down is that any private transfer of the property attached or of any interest therein shall be void as against all claims enforceable under the attachment. It does not make the sale deed inadmissible; nor does it make any acknowledgment in that document inadmissible in evidence, invalid or void as against the attaching creditor. All that the attaching creditor can say is that he is not bound by transfer of the property. It has been argued by Mr. Shambhu Prasad as amicus curiae for the respondents that a mortgagee is not bound by an acknowledgment made by a mortgagor at the date of the mortgage and the attaching creditor will be in the same position as the mortgagee. It is not necessary to go into the question whether the mortgagee is bound by an acknowledgment by the mortgagor after the date of the mortgage. But the same principle cannot apply to an attaching creditor who has no interest in the property. An attaching creditor is not a transferee. His rights, whatever they are, are derived under Section 64 and O.21, Civil P.C. and he cannot claim anything more by reason of any equitable considerations.
4. Learned Counsel has cited before us the case in Rajeshwari Dasi v. Binoda Sundari Dasi ('18) 5 A.I.R. 1918 Cal. 978, a decision of the Calcutta High Court, where the learned Judges held that the auction-purchaser is entitled to purchase the property in the condition in which it was at the time of the attachment and is therefore not bound by any acknowledgment made after the date of the attachment. We are afraid Section 64, Civil P.C., does not lay down any such proposition. All that it says is that certain transfers would be void. On the date Of the attachment, the mortgagor was still the owner of the equity of redemption and Cheda Lal acquired the property from him after the execution of the sale deed. It is impossible to urge that Cheda Lal did not derive his title from Nek Ram on 20th June 1929 when Cheda Lal purchased the property at auction but on the prior date of attachment. He was therefore under Section 19, Limitation Act, bound by the acknowledgment. With the greatest respect we do not agree with the decision in Rajeshwari Dasi v. Binoda Sundari Dasi ('18) 5 A.I.R. 1918 Cal. 978 and we are clearly of opinion that the acknowledgment did save limitation and the plaintiffs' suit was, therefore, within time. We allow this appeal, set aside the decrees of the Courts below and as the case has been disposed of only on the preliminary issue of limitation we send the case back to the trial Court for decision on the merits. Costs here and heretofore will abide the result. The court-fees are to be refunded.