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Jai Singh Prasad Vs. Surja Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All167
AppellantJai Singh Prasad
RespondentSurja Singh and ors.
Cases ReferredVasudeva Mudaliar v. Srinivasa Pillai
Excerpt:
act no. ix of 1908 (indian limitation act), section 31 - limitation--mortgage--suit on mortgage barred under limitation act of 1871--mortgagee's rights not revived by present act. - - the appellant relies upon this section, and contends that it is clear from the mention of sixty years that it was intended to apply to cases like the present, even though they wore already barred by the provisions of the act of 1871. we cannot agree with this contention......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.
Judgment:

Henry Richards, Kt. C.J. and Banerji, J.

1. This appeal arises out of a suit on a mortgage, dated the 19th 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 twelve years of the time the money became due, that is to say, within twelve years from the 19th of June, 1864. That Act contained no provision similar to Article 147 of Act XV of 1877. 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 some time 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 sixty years, but their Lordships of the Privy Council have considered this view erroneous--see Vasudeva Mudaliar v. Srinivasa Pillai (1907) I.L.R., 30. Mad., 436. 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 sixty years from the date when the money secured by the mortgage becomes due, whichever period expires first. The appellant relies upon this section, and contends that it is clear from the mention of sixty years that it was intended to apply to cases like the present, even though they wore 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.


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