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Kamalammal Vs. M. Kanthamma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1971)1MLJ471
AppellantKamalammal
RespondentM. Kanthamma
Cases ReferredIn Sankara Menan v. Theethoose A.I.R.
Excerpt:
.....by such transferee will be as good as an acknowledgment made by the transferor-defendant himself. but suffice it for the present purpose to hold that the acknowledgment made by her of the liability of the property for the mortgage decree is as good as an acknowledgment made by the mortgagor himself and would save limitation by force of section 19 of the limitation act......judgment-debtor, a sale of the hypotheca. this sale deed did not provide for the discharge of the mortgage decree obtained by the respondent. subsequently, the appellant instituted o.s. no. 578 of 1958 on the file of the city civil court, madras, against the respondent (mortgagee-decree-holder) and veeraswami chetti (mortgagor) praying for declaration that the mortgage decree was invalid. this suit was resisted by the respondent. eventually, the parties entered into compromise in this suit whereby a joint endorsement on the plaint was made by the appellant and the respondent on nth december, 1959. this endorsement provided that if the appellant paid rs. 400 towards the mortgage decree dated 5th march, 1956 on or before nth december, 1960, the respondent should record full satisfaction.....
Judgment:

S. Maharajan, J.

1. The question that arises for determination in this Civil Miscellaneous Second Appeal is one of limitation. Kanthamma, the respondent herein, obtained a preliminary decree on 28th August, 1955 against one Veeraswami Chetti on foot of an equitable mortgage. A final decree was passed in pursuance thereof on 5th March, 1956. About a year after the final decree, Kamalamma, the appellant, obtained from Veeraswami Chetti, the judgment-debtor, a sale of the hypotheca. This sale deed did not provide for the discharge of the mortgage decree obtained by the respondent. Subsequently, the appellant instituted O.S. No. 578 of 1958 on the file of the City Civil Court, Madras, against the respondent (mortgagee-decree-holder) and Veeraswami Chetti (mortgagor) praying for declaration that the mortgage decree was invalid. This suit was resisted by the respondent. Eventually, the parties entered into compromise in this suit whereby a joint endorsement on the plaint was made by the appellant and the respondent on nth December, 1959. This endorsement provided that if the appellant paid Rs. 400 towards the mortgage decree dated 5th March, 1956 on or before nth December, 1960, the respondent should record full satisfaction of the decree and that in case the appellant failed to pay the amount of Rs. 400 with the prescribed period, the respondent would be entitled to the full amount due under that decree. This endorsement was recorded by the Court nth December, 1959 and the suit O.S. No. 578 of 1958 was consequently dismissed.

2. Even before the institution of O.S. No. 578 of 1958, the respondent had filed E.P. No. 167 of 1957 seeking execution of her mortgage decree. While the said E.P. was pending, the appellant, who instituted O.S. No. 578 of 1958, obtained an injunction restraining the respondent from bringing the hypotheca to sale pending the disposal of the suit. After receiving the order of interim injunction, the executing Court dismissed E.P. No. 167 of 1957 on 9th July, 1958. It was subsequent to the dismissal of the E.P. that the suit, O.S. No. 578 of 1958 was compromised, as already stated, on nth December, 1959. As the appellant filed to pay the amount of Rs. 400 on or before nth December, 1960, the date mentioned in the compromise, the respondent failed E.P. No. 314 of 1963 on 10th December, 1962, for execution of the mortgage decree by sale of the hypotheca after notice to the appellant. The E.P. was returned on 25th January, 1963 by the office, which raised the objection that no notice could be issued to the appellant unless she was brought on record as party to the E.P. In compliance with this return the respondent represented a E.P. No. 314 of 1963 on 7th February, 1963, impleading the appellant as a party and prayed for sale of the hypotheca after issuing notice to the appellant. The appellant entered appearance and contended that the execution petition was barred by time.

3. The executing Court rejected this contention and held that the joint endorsement made by the appellant in O.S. No. 578 of 1958 on nth December, 1959 was a sufficient acknowledgment of the liability and that E.P. No. 314 of 1963, which has been filed within three years from the date of acknowledgment, was in time. Against this order, the appellant preferred C.M.A. No. 66 of 1964 on the file of the Additional Judge, City Civil Court, Madras, who after upholding the findings of the executing Court, dismissed the appeal with costs. Against this judgment, the present appeal has been filed.

4. E.P. No. 167 of 1957 was filed within three years after the date of the final decree and was dismissed on 9th July, 1958, not for any default on the part of the decree-holder, but for the reason that in O.S. No. 578 of 1958 the appellant had obtained an injunction restraining the respondent from executing the decree. The suit, in which the interim injunction was granted was dismissed, as I have already observed, on nth December, 1959. In the absence of evidence to the contrary, the first appellate Court was right in presuming that the injunction must have been in force till nth December, 1959. Under Section 15 of the Indian Limitation Act (IX of 1908):

In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuation of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

5. If the period from 9th July, 1958, the date of dismissal of E.P. No. 167 of 1957, and nth December, 1959, the date |on which injunction was dissolved is excluded, it would follow that E.P. No. 314 of 1963, which was filed' (on 10th December, 1962, would be within three years from the date of the final order ion the prior E.P. and saved from the bar of limitation.

6. Learned Counsel for the appellant contends that the burden of proving that the interim injunction continued to be in force till the dismissal of O.S. No. 578 of 1958 must be discharged by the respondent. I am unable to agree. If it is '] admitted that an interim injunction was obtained by the appellant in O.S. No. 578 of 1958 till the disposal of the suit, and if the suit was disposed of only on nth (December, 1959, the presumption that j the injunction continued to be in force till the date of the disposal of the suit would hold in the absence of any evidence produced by the appellant to the effect that this injunction was dissolved on an earlier date. On this sole ground, this appeal is bound to fail.

7. However, as the learned Counsel for the appellant argued the question of limitation on the assumption that the injunction was not in force till the disposal of the suit, I think it fair to deal with his contentions on that basis as well. Ignoring for the sake of argument, the embargo placed upon the execution of the decree by the injunction granted in O.S. No. 578 of 1958, the first appellate Court has rightly come to the conclusion that E.P. No. 314 of 1963 would still be in time. Admittedly, the appellant made a joint endorsement on nth December, 1959, acknowledging the mortgage liability. Under Section 19 of the Indian Limitation Act (IX of 1908):

Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or tight has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

8. Explanation III to this section provides:

For the purposes of this section, an application for the execution of a decree or order is an application in respect of a right.

9. Learned Counsel for the appellant contends that at the time the appellant made the acknowledgment of the mortgage liability, she was not a party either to the mortgage decree or to the execution petition and her acknowledgement of liability could not, therefore, save the decree from the bar of limitation. I am unable to agree. Section 19 does not require that the person acknowledging must be a party to the suit or the application. All that it says is that an acknowledgment of liability in respect of such property or right in order to be valid must be made in writing signed by the party against whom such property or right is claimed. At the time the joint endorsement was made, the appellant was the owner of the property in respect of which her father Veerasami Chetti had obviously granted a mortgage in favour of the respondent. The respondent by virtue of the endorsement as well as by virtue of a decree obtained by her, was entitled to claim the mortgage money from the property of which the appellant was the owner and to enforce the claim by bringing the hypotheca to sale. When on nth December, 1959, the appellant acknowledged the mortgage liability, she was certainly a party against whom the property or right to enforce the mortgage against the property was claimed by the respondent. Consequently, the acknowledgment of liability made by the appellant would have the effect of giving a fresh period of limitation of three years. Learned Counsel for the appellant cited several authorities in which an acknowledgment by a mortgagor after parting with all his interest in the property has been held to be not a valid acknowledgment within the meaning of Section 19. I therefore refrain from referring to the authorities cited. I may also in this connection refer to a Full Bench decision in Nallathambi Nadar v. Ammal Nadachi : AIR1964Mad169 , where it has been held that the two essential requirements of Section 19 of the Limitation Act (IX of 1908) are : (1) There should be an acknowledgment of liability in respect of the property or the right in question and (2) it should be by the party against whom such property or right is claimed. It was held that an acknowledgment of liability presupposes that the person acknowledging possesses some interest which can be bound by his statement and that if he has no such interest, it will be a misnomer to call his statement an acknowledgment of liability. In this case, the appellant at the time she made the acknowledgment was undoubtedly the owner of the property entitled to redeem the mortgage liability which she was acknowledging. Her acknowledgment therefore fulfils both the requirements of the section.

10. In Sankara Menan v. Theethoose A.I.R. 1952 T.C. 404, a Division Bench of the Travancore-Cochin High Court went the length of holding that where the decree-holder's right is against the schedule properties, any person getting a transfer of the title to the property from the original defendant would also be deemed to be a party to the decree within the meaning of Section 19 and that an acknowledgment of the liability of the properties as per the decree in the case made by such transferee will be as good as an acknowledgment made by the transferor-defendant himself. I do not know whether it is necessary to go to the extent of holding that the appellant must be deemed to be a party to the decree when she made the acknowledgment. But suffice it for the present purpose to hold that the acknowledgment made by her of the liability of the property for the mortgage decree is as good as an acknowledgment made by the mortgagor himself and would save limitation by force of Section 19 of the Limitation Act. E.P. No. 314 of 1963 having been filed on 10th December, 1962, within three years from nth December, 1959, the date of the acknowledgment, must therefore, be held to be in time.

11. Learned Counsel for the appellant contends that inasmuch as E.P. No. 314 of 1963 did not implead the appellant as party thereto when it was presented on 10th December, 1962 and inasmuch as the amendment of the execution petition impleading the appellant as party was represented only on 7th February, 1963 as against the appellant and must therefore; be held barred by time. This argument has been rightly refuted by the first appellate Court with reference to Order 21, Rule 17(2), Civil Procedure Code, which runs as follows:

Where an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

12. I therefore uphold the view of the Courts below and dismiss the appeal. Leave refused.


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