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Domi Lal Sahu Vs. Roshan Dobay - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal1278
AppellantDomi Lal Sahu
RespondentRoshan Dobay
Cases ReferredNewbould v. Smith
Excerpt:
limitation act (xv of 1877) section 20 - mortgage--part payment--payment by predecessor in interest. - .....of a debt is, before the expiration of the prescribed period, paid by the debtor..... a new period of limitation according to the nature of the original liability shall be computed from the time when the payment was made.' here a payment of part of the principal was made by the mortgagor, who was then the debtor (for he was clearly liable for the debt) so late as 26th april 1893. 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.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. The plaintiff is a mortgagee under a mortgage created by a bond dated the 10th February 1886. The present respondent is the purchaser under a money decree of the equity of redemption in the property mortgaged. There is a dispute as to whether or not he was the purchaser of the whole of such property or only of part. The matter is not clear. He purchased in 1891. I should say on the findings that the whole of. the property was not purchased. The due date for the payment of the debt was in May 1889. The mortgagor paid from time to time portions of the principal to the mortgagee, and a payment was made as late as the 26th April 1893. Those payments are endorsed on the bond. The suit was brought on the 14th May 1903. The question is whether the suit is barred as against the present respondent, and this depends upon the construction of Section 20 of the Limitation Act. That section says: 'When part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor..... a new period of limitation according to the nature of the original liability shall be computed from the time when the payment was made.' Here a payment of part of the principal was made by the mortgagor, who was then the debtor (for he was clearly liable for the debt) so late as 26th April 1893. 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 or the Act. There is nothing in the section to indicate that the extension is only to operate against the person making the payment. The case appears to be governed by the case of Krishna Chandra Saha v. Bhairab Chandra Saha (1905) I.L.R. 32 Calc. 1077, which apparently was not cited to the learned Judge, against whose decision this appeal is brought. As regards Newbould v. Smith (1886) 83 Ch. D. 127 I think the question must be decided upon the term of the Statute of Limitation prevailing in this country. I understand that the fact of the payment of part of the principal appears in the handwriting of the mortgagor, who made it.

2. The appeal must be allowed with costs here and before the learned Judge, and the decree of the Subordinate Judge restored.

Holmwood, J.

3. I agree.


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