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Mohesh Ghose Vs. Umesh Chandra Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.241
AppellantMohesh Ghose
RespondentUmesh Chandra Ghose and ors.
Cases ReferredRashbihari Das v. Kunjabihari Patra
Excerpt:
limitation act (ix of 1908), schedule i, article 132 - mortgage--hypothecation of properties as security for return of paddy borrowed or its money value--limitation. - .....recites that for the realization of the said paddy, that is to say, the balance of paddy due after payment properties mentioned are mortgaged as security.2. in reliance upon the decision of a divisional bench of this court reported as rashbihari das v. kunjabihari patra 37 ind. cas. 805 ; 24 c.l.j. 348 it is contended on behalf of the appellant that the suit is not one to enforce payment of money charged on immoveable property within the meaning of article 132 of the schedule to the limitation act and that therefore the rule of limitation applicable is the six years' rule to be found in article 116 or article 120. speaking for myself, i may say that i am not prepared to accept or fellow the view of article 132 taken in the case which i have just cited. but even if 1 were, i should.....
Judgment:

Teunon, J.

1. This appeal arises out of a suit brought to enforce a mortgage bond. The bond recites that the executant of the bond had borrowed 14 maps of paddy, and further provides for the payment of interest year by year at the rate of 2 salis of paddy per map. It further recites that for the realization of the said paddy, that is to say, the balance of paddy due after payment properties mentioned are mortgaged as security.

2. In reliance upon the decision of a Divisional Bench of this Court reported as Rashbihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 ; 24 C.L.J. 348 it is contended on behalf of the appellant that the suit is not one to enforce payment of money charged on immoveable property within the meaning of Article 132 of the Schedule to the Limitation Act and that therefore the rule of limitation applicable is the six years' rule to be found in Article 116 or Article 120. Speaking for myself, I may say that I am not prepared to accept or fellow the view of Article 132 taken in the case which I have just cited. But even if 1 were, I should distinguish the bond in the present case from the bond then under consideration. 'In this bond there is a specific provision, that if the borrower fails to return the whole paddy according to agreement, then what' ever be the balance of paddy due the price thereof shall be calculated at the rate of six rupees per map and that the mortgagee should be competent to realise that amount of money at once by suit by sale of the mortgaged properties. Thus reading the bond as a whole, it is dear that the mortgaged properties are given as security not purely for the amount of paddy that might be found due but also of the money value thereof. In my opinion in this case the Article applicable is clearly Article 132 and this appeal will, therefore, be dismissed with costs.

Walmsley, J.

3. I agree that the appeal should be dismissed. I wish to say that I do so only on the ground that the learned District Judge appears to be correct in the construction which he has put on the terms of the bond.


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