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Rajtilak Narayan Sur Vs. Mufizuddi Topadar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal193
AppellantRajtilak Narayan Sur
RespondentMufizuddi Topadar
Cases ReferredChandra Kumar Dhar v. Ramdin Poddar
Excerpt:
- .....effect of payment of an interest made by a person who is liable ex contractu for payment of a mortgage-debt while he possesses no estate in the equity of redemption, that is to say, whether the legislature intends to confer on him the power of suspending the operation of the statute while it was in the process of conveying an estate in fee-simple to the person in possession of the land subject-to the lien of the mortgage so far as the english statutes of limitation are concerned, seems yet an unsettled question. the judicial committee of the privy council in lewin v. wilson [1886] 11 a.c. 639, answered it in the affirmative, it being held that payment of interest by a on money advanced on a joint and several mortgage-bond of a and b and secured by a mortgage upon the land of a and a.....
Judgment:

Mukerji, J.

1. This appeal arises out of certain execution proceedings. One Osman Ali and another held a mortgage from one Abdul Sobhan. The appellant before us is the purchaser of the equity of redemption in the mortgaged proparties. The mortgagees obtained a decree nisi on the mortgage on the 11th July 1921, and then a final decrees for sale on the 11th August 1921. They then transferred the decree to one Mofizuddi Tapadar. The latter applied on the 15th November 1924, for execution of the decree. The appellant objected inter alia on the ground of limitation. The decree-holder relied upon a payment by the mortgagor in respect of the principal and interest alleged to have been made in June 1924, an endorsement whereof had been made on the back of the copy of the decree nisi. The Munsif in whose Court the decree was sought to be executed held in favour of the appellant upon his other objections, viz., that the kobala by the mortgagees in favour of Mofizuddi was a benami transaction and that the decree had been satisfied by the payment of the decretal debt by the mortgagor to the mortgagees, and did not go into the question of limitation. On appeal the Subordinate Judge held that the assignment in favour of Mofizuddi was bona fide and for consideration and that the plea of satisfaction was not made out, and further that the execution was not barred by limitation. 'The appellant has then preferred this appeal, and his substantial contention relates to the question of limitation.

2. The payment upon which the assignee of the decree relies has, upon the finding of the learned Subordinate Judge, been proved. It was a payment made for principal as well as for interest. There can be no question, therefore, that there was payment of interest as such of the decretal debt before the expiration of the period of limitation prescribed for an application for execution. Nor is there any question that the payment was made at a time when the mortgagor was liable to pay the decretal debt. The whole question before us is whether this payment by the mortgagor saves the operation of the statute as against the mortgagor only or also as against the appellant who is the purchaser of the equity of redemption.

3. If the question had arisen as between the parties before any decree was passed it could have been treated as being concluded by authority, at least so far as this Court is concerned. In Krishna Chandra Saha v. Bhairab Chandra Saha [1905] 32 Cal. 1077, there was an acknowledgment as well as a payment made by a mortgagor; and' it was held that as regards the acknowledgment it was made by the person, namely the mortgagor, through whom the purchaser of the equity of redemption derived his title and the language of Section 19 of the Act, covered the case; and as regards the payment it came within the wording of Section 20 and that the action was not barred as against the property in the hands of the purchaser. Maclean, C.J., in this judgment referred to the case of Chinnery v. Evans [1864] 11 H.L.C. 115, and observed that the principle deducible from that case was applicable, namely, that a mortgagee cannot by the act of the parties entitled only to the equity of redemption be deprived of his right to resort to any estate comprised in his mortgage so long as that mortgage is legally kept alive.

4. In the case of Domi Lal Sahu v. Roshan Dobay [1906] 33 Cal. 1278, in which also the same question arose, Maclean, C.J., referring to he language of Section 20 observed thus:

It is contended that the section only creates a new period of limitation as against the person actually paying the money, and that as the respondent had purchased before this payment was made the new period of limitation cannot take effect as against him. There is nothing in the language of the section to support that view and there is nothing to warrant us in introducing words into the section which would authorize that view, The words of the section are general and plain. When the Legislature intends that a fresh period of limitation is to operate as against certain persons only, it says so in distinct terms. See Section 18 of the Act. There is nothing in the section to indicate that the extension is only to operate against the person making the payment.

5. It appears that during the arguments in this case reference was made to the case of Newbould v. Smith [1866] 33 Ch. D. 127, but it was held that that decision has no application as the question must be decided upon the terms of the Statute of Limitation prevailing in this country. The principles underlying these two decisions of this Court have been adopted as correct in the cases of Raushan Lal v. Kanhaiya Lal [1919] 41 All. 111 and Velayudam Pillai v. Vaithyalingam Pillai [1912] 24 M.L.J. 66. In the latter of the aforesaid two cases it has been said that it is wrong to construe the words 'person liable to pay the debt or legacy' as meaning the persons liable to pay, in a case where there are several persons liable on one and the same debt, so as to make the payment by one of them useless as against the others.

6. The question as to what is the legal effect of payment of an interest made by a person who is liable ex contractu for payment of a mortgage-debt while he possesses no estate in the equity of redemption, that is to say, whether the Legislature intends to confer on him the power of suspending the operation of the statute while it was in the process of conveying an estate in fee-simple to the person in possession of the land subject-to the lien of the mortgage so far as the English Statutes of Limitation are concerned, seems yet an unsettled question. The Judicial Committee of the Privy Council in Lewin v. Wilson [1886] 11 A.C. 639, answered it in the affirmative, it being held that payment of interest by A on money advanced on a joint and several mortgage-bond of A and B and secured by a mortgage upon the land of A and a mortgage upon the land of B was sufficient to preserve the lien of B's mortgage, although B and his devisee had occupied the mortgaged premises without acknowledgment of the mortgage for more than 30 years. The question was answered in the negative by the Court of appeal in Newbould v. Smith [1866] 33 Ch. D. 127 it being held that payment of interest by the mortgagor, who remained liable ex contractu to pay the debt though he had alienated the equity of. redemption was held insufficient to preserve the lien on the mortgage. This last mentioned case went up to the House of Lords in Newbould v. Smith [1889] 14 A.C. 423, and though the decision of the Court of appeal was affirmed on some other point no opinion was expressed on this question. Lord Macsnaghten observe:

With regard to the important point on which the Court of appeal principally founded their judgment, I desire to say that I express no opinion on it

and Lord Herschell described the question as:

a serious question and one of general importance.

7. The decision of the Judicial Committee in the case of Lewin v. Wilson [1886] 11 A.C. 639 must be taken to have settled the law of the colonies, while there seems to be a strong current of judicial opinion in favour of the view of the Court of appeal in the case of Newbould v. Smith [1866] 33 Ch. D. 127. The case of Chinnery v. Evans [1864] 11 H.L.C. 115 was the case of payment of interest by a receiver who had been appointed over several mortgage estates but who had entered into possession of one estate only and it was held that such payment was sufficient to preserve the lien on all the estates, even if they have passed into the hands of bona fide purchasers for value. It is not necessary to consider the effect of the Statutes 3 and 4 Will C. 27, and 1 Vic. C. 28, upon which the aforesaid cases were decided, for the question here must be decided with reference to the provisions of the Indian Limitation Act, and at least so far as this Court is concerned, must be regarded as concluded by the decisions of this Court to which I have referred.

8. As regards the payment made by the mortgagor judgment-debtor after decree the effect of it again has to be considered with reference to the provisions of the Indian Statute. Reliance has been placed on behalf of the appellant upon Section 21, Sub-section (2) for the broad proposition that payment by one judgment-debtor cannot operate to prevent the statute running against the other. The word 'only' in that sub-section is not a mere surplusage and if effect be given to the word the sub-section would not in any way interfere with the operation of Sections 19 and 20, but would restrict the application of those sections to cases which strictly satisfy their requirements. There is no reason also why words appearing in Section 19 should be read into Section 20 in which they do not appear. If Section 20 is thus construed the money payable under the decree was a debt, and if interest thereon has been paid when the mortgagor judgment-debtor was still liable to pay the debt a fresh period of limitation has arisen. That fresh period upon the wide language of the section, must be held to have accrued to the benefit of the judgment-debtor. There is nothing in the section to suggest that it accrues to the detriment of the payer only. The case of Chandra Kumar Dhar v. Ramdin Poddar [1912] 15 C.L.J. 251 was a case of acknowledgment and not of payment.

9. I am accordingly of opinion that the decree was not barred and the order of the learned Subordinate Judge is correct. The appeal, in my opinion, fails and must be dismissed with costs hearing-fee being assessed at two guineas.

Greaves, J.

10. I agree.


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