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Gaya Prasad and anr. Vs. Sher Ali and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All402(1); 39Ind.Cas.574
AppellantGaya Prasad and anr.
RespondentSher Ali and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 66 - suit on bond--money payable within 3 years--interest payable monthly--right to sue on default of payment of interest--suit brought within 3 years after money became payable, whether barred. - - the creditor must be presumed to have exercised the option which was clearly given to him by the terms of the bond......court dismissing the plaintiffs' suit on the ground of limitation. the suit was brought upon a bond dated the 19th day of november 1909. the money was re-payable within three years from the date of the bond and the interest was payable monthly but the bond contained a further stipulation that if default was made in payment of interest, the interest should be added to the principal and further interest charged. on default of payment of interest the holder of the bond was entitled, at his option, either to sue forthwith to recover the amount or to await the stipulated period. the court below seems to have decided the case on the authority of the ruling in gaya din v. jhuman lal 28 ind. cas. 910 ; 13 a.l.j. 510 37 a. 400. that case was decided as being a case to which article 132 of the.....
Judgment:

1. This application is one for revision of a decree made by the Small Cause Court dismissing the plaintiffs' suit on the ground of limitation. The suit was brought upon a bond dated the 19th day of November 1909. The money was re-payable within three years from the date of the bond and the interest was payable monthly but the bond contained a further stipulation that if default was made in payment of interest, the interest should be added to the principal and further interest charged. On default of payment of interest the holder of the bond was entitled, at his option, either to sue forthwith to recover the amount or to await the stipulated period. The Court below seems to have decided the case on the authority of the ruling in Gaya Din v. Jhuman Lal 28 Ind. Cas. 910 ; 13 A.L.J. 510 37 A. 400. That case was decided as being a case to which Article 132 of the Schedule to the Limitation Act applies. That Article provides that the period of limitation for the enforcement of payment of money charged upon immoveable property shall be the period of 12 years from the date upon which the money sued for became due.' The Court in that case had to consider when the money sued for had become due within the meaning of the expression in the Article. In the present case the instrument sued upon was a single bond which specified a day for payment, namely, three years from the date of the bond. We think this is the date which must regulate the priod of limitation. The Article which applies is Article 66, The particular provision in this bond which provided that the creditor had the option of suing at once or waiting until the prescribed period is immaterial for the purpose of computing the period for limitation. The creditor must be presumed to have exercised the option which was clearly given to him by the terms of the bond. We allow the application, set aside the decree of the Court below and remand the case to that Court with directions to re-admit the suit in its original number and to proceed to hear and determine the same according to law. The costs of this application will be costs in the cause.


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