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Mahabeer Singh and ors. Vs. Juneswar Dass - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal164
AppellantMahabeer Singh and ors.
RespondentJuneswar Dass
Excerpt:
act xiv of 1859, section 1, clauses 10, 12, 16 - limitation--interest in immoveable property. - .....not within that section, and not being otherwise provided for, falls within the limitation of six years in clause 16. their lordships, however, are clearly of opinion that neither of these clauses is applicable to this suit, which is brought, in substance, for the recovery of immoveable property, or of an interest in immoveable property, and falls therefore within clause 12 of the first section. the object of the suit is to obtain, a sale of the land as against the defendants grouped as defendants no. 2 and no. 3, who had become purchasers under a subsequent mortgage bond. it is therefore, as against them, a claim founded not upon the contract to pay the money, but upon the hypothecation of the land. their lordships would have been disposed so to apply the statute of limitations if the.....
Judgment:

M.E. Smith, J.

1. After the discussion which has taken place at the bar, there remain only two questions to be decided. The first is purely a question of fact. * * *

2. The other question arises upon the period of limitation which is applicable to this case. As already observed, the instrument contains two distinct things: the obligation to pay the money, which binds the maker of it only, and the mortgage of the land; and the plaint in the present suit is properly framed upon the instrument in that aspect. It seeks to charge the first defendant, the maker of the bond, Ritbhunjun Singh personally, and it also claims to recover the amount of the principal and interest by the sale of the mouzahs (naming them), which were the hypothecated property included in the mortgage. It is contended for the appellant that the limitation contained in Clause 16, Section 1 of the Act XIV of 1859 is the proper limitation to apply to the case. That is a sweeping clause, which provides thus: 'that to all suits in which no other limitation is hereby expressly provided, a period of six years from the time the cause of action arose.' It is said that this is a suit brought to recover money lent, and the interest oh that money, and that it falls within Clause 16, because, although Clause 10 applies to suits for money lent, it does not apply to them in the cases where the instrument shall have been registered within six months from the date, and this bond, having been so registered, is not within that section, and not being otherwise provided for, falls within the limitation of six years in Clause 16. Their Lordships, however, are clearly of opinion that neither of these clauses is applicable to this suit, which is brought, in substance, for the recovery of immoveable property, or of an interest in immoveable property, and falls therefore within Clause 12 of the first section. The object of the suit is to obtain, a sale of the land as against the defendants grouped as defendants No. 2 and No. 3, who had become purchasers under a subsequent mortgage bond. It is therefore, as against them, a claim founded not upon the contract to pay the money, but upon the hypothecation of the land. Their Lordships would have been disposed so to apply the Statute of Limitations if the matter had been res Integra, but it appears from the cases to which they have been referred by Mr. Cave that there has been a long and almost uniform current of decisions in the two provinces of Bengal and Madras, giving this construction to the Act. Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. Arathoon that this suit would have been barred if the limitation of six years under Clause 16 had been applicable to it. They think, upon the construction of this bond, there would be good reason for holding that the cause of action arose within six years before the commencement of the suit. However, it is sufficient to say that their Lordships think the limitation applicable to the case is that under Clause 12, Section 1 of the Limitation Act.

3. In the result, their Lordships will humbly advise Her Majesty to affirm the decision of the High Court, and to dismiss this appeal with costs.


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