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Jai Singh Prashad Vs. Suraja Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.517
AppellantJai Singh Prashad
RespondentSuraja Singh and ors.
Excerpt:
limitation act (ix of 1908), section 31 - limitation act (xv of 1877), section 2, schedule ii, article 147. - - the appellant relies upon this section, and contends that it is clear from the mention of 60 years that it was intended to apply to cases like the present, even though they were already barred by the provisions of the act of 1871. we cannot agree with this contention......1871. the section expressly refers only to the provisions of act xv of 1877 and not to any earlier act. it is quite clear that if the plaintiff had instituted the suit whilst act xv of 1877 was still in force, it would have been time-barred. the enactment of section 31 certainly can give him no higher title. we dismiss the appeal with costs including in this court fees on the higher scale.
Judgment:

1. This appeal arises out of a suit on a mortgage, dated the 19 th of July 1863. The money secured by it became payable on the 19th of June 1864. The present suit was instituted on the 6th of August 1910. The Court below has dismissed the suit as being barred by time. In our opinion, this view was correct. Under the Limitation Act of 1871, which, governed the present mortgage, a suit could only be brought within 12 years of the time when the money became due, that is to say, within 12 years from the 19th of June 1864. That Act contained no provision similar to Article 147 of Act XV of 1887. It is, therefore, quite clear that before the passing of the last mentioned Act, the claim under the bond in suit was barred by limitation. It is manifest from the provisions of Section 2 of the Act of 1877, that no right which had become barred under the Act of 1871, was thereby revived. No doubt for sometime, this High Court considered that a suit might be instituted in respect of mortgages which were governed by the Act of 1877 at any time within 60 years but their Lordships of the Privy Council have considered this view erroneous see Vasudeva Mudaliar v. K.S. Srinivasa Pillai 30 M. 426 (P.C.); 17 M.L.J. 444; 11 C.W.N. 1005; 4 A.L.J. 625; 6 C.L.J. 379; 2 M.L.T. 333; 9 Bom. L.R. 1104; 34 I.A. 187. This last mentioned decision and the hardship which was supposed to follow in consequence led to the introduction of Section 31 of the present Act, which provides that notwithstanding anything contained in it, or in the Limitation Act of 1877, a suit for sale may be instituted within two years from the date of its passing or within 60 years from the date when the money secured by the mortgage became due, whichever period expires first. The appellant relies upon this section, and contends that it is clear from the mention of 60 years that it was intended to apply to cases like the present, even though they were already barred by the provisions of the Act of 1871. We cannot agree with this contention. It is impossible to hold that by the introduction of this section the Legislature intended to revive rights which had already become long since barred under the Act of 1871. The section expressly refers only to the provisions of Act XV of 1877 and not to any earlier Act. It is quite clear that if the plaintiff had instituted the suit whilst Act XV of 1877 was still in force, it would have been time-barred. The enactment of Section 31 certainly can give him no higher title. We dismiss the appeal with costs including in this Court fees on the higher scale.


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