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P.M.A. Muthiah Chettiar (Dead) and anr. Vs. Venkatasubbarayulu Naidu - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Reported inAIR1926Mad160; 90Ind.Cas.1033; (1925)49MLJ394
AppellantP.M.A. Muthiah Chettiar (Dead) and anr.
RespondentVenkatasubbarayulu Naidu
Cases Referred and Mahomed Hafiz v. Mahomed Zakariya
Excerpt:
- - -if i should fail to pay. in this state of affairs we prefer to follow the course of decisions in this court in preference to the view of the allahabad high court ;and, consequently, this appeal must fail and is dismissed with costs of plaintiff and 73rd respondent......interest, up to that date should become due. it is argued before us in the first place that this default clause leaves no option to the mortgagee as to whether he shall or shall not enforce it; but on a construction of the language of the document which is translated in this court as follows: - 'if i should fail to pay... you shall be at liberty to recover, ' it is clear that the option is reserved with the mortgagee to enforce this clause at his pleasure. that being so, the question is whether the period of limitation started to run on the date of default, or when the money became due under the terms of the main contract, namely 1904, under article 132 of the limitation act. the view that the money. becomes due within the meaning of this article at the date of the first default has.....
Judgment:

1. The only question that arises in this appeal is one of limitation. The suit is brought on a mortgage deed dated 20th September, 1890, in 1916, the mortgage money not being payable under the deed until 1904. There is also a clause in the deed that in default of payment of interest the whole amount, principal and interest, up to that date should become due. It is argued before us in the first place that this default clause leaves no option to the mortgagee as to whether he shall or shall not enforce it; but on a construction of the language of the document which is translated in this Court as follows: - 'If I should fail to pay... you shall be at liberty to recover, ' it is clear that the option is reserved with the mortgagee to enforce this clause at his pleasure. That being so, the question is whether the period of limitation started to run on the date of default, or when the money became due under the terms of the main contract, namely 1904, under Article 132 of the Limitation Act. The view that the money. becomes due within the meaning of this Article at the date of the first default has been adopted by the Allahabad High Court in Gaya Din v. Jhumman Lal ILR (1915) A 400 and that decision has been followed in two subsequent cases in Nathi v. Tutsi ILR (1920) A 671 and Collector of Jaunpur v. Jamna Prasad ILR (1922) A 360. The case in Gaya Din v. Jhumman Lai ILR (1915) A 400. has been considered by this Court in Narna v. Ammani Ammal ILR (1916) M 981 in which a Division Bench took a view different from that of the Allahabad High Court and that view has subsequently been followed in Ramadh Bibi Ammal v. Kandaswami Piliai (1917) 9 L W 479, Lachakkammal v. Sokkayya Naick (1918) MWN 586, Kaliappa Nddar v. Sami Aiyar (1921) MWN 384 and Appayya v. Venkataramayya (1924) 20 L W 620 and to one or other of those cases we Both have been parties. There is no definite pronouncement of the Privy Council on this point, although there is a dictum in support of the view taken in this Court in Juneswar Das v. Mahabeer Singh (1875) ILR 1 C 163 (PC) the other cases of the Privy Council cited before us, namely, Kishen Narayan v. Pala Mal (1922) 44 MLJ 123 and Mahomed Hafiz v. Mahomed Zakariya ILR (1921) A 121 are decisions under Order 11, Rule 2 of the Code of Civil Procedure, and are not authorities on this point. In this state of affairs we prefer to follow the course of decisions in this Court in preference to the view of the Allahabad High Court ; and, consequently, this appeal must fail and is dismissed with costs of plaintiff and 73rd respondent.

2. In this view it is unnecessary to decide the further point upon which the Lower Court relies, namely, that the limitation was saved by reason of the acknowledgment of the debt.

3. The balance of Rs. 50 due to the Court-guardian will be paid by the appellant.


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