Skip to content


Arjun Ram Pal Vs. Rohima Banu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.128
AppellantArjun Ram Pal
RespondentRohima Banu and ors.
Cases ReferredImam Ali v. Baij Nath
Excerpt:
limitation act (xv of 1877), section 20 - payment of interest--saving of limitation--payment by one of joint debtors, effect of. - .....against purchasers from him even if made after the purchase. bat here, after akram's death, his widow and daughters were jointly liable to pay the debt, and, having regard to the analogy of section 21 sub-section (2) of the limitation act, i do not think that a payment by the widow would save limitation against the daughters much less against the purchasers from the daughters. it is argued that the gift by akram to the daughters was free of encumbrances and that, therefore; the widow must be regarded as the sole person liable to pay the debt. but there is no reason whatever for supposing that the gift to the daughters was free of encumbrances. in this connection, i may refer to the case of narayana ayyar v. venkataramana 25 m. 220. there is a remark in the case of saroda charan.....
Judgment:

Coxe, J.

1. This was a suit on the mortgage executed by one Akram on the 20th August 1895. The due date was the 28th November 1895 and the suit was instituted on the 25th November 1907. The plaintiff has obtained a partial decree with which he is dissatisfied and hence this appeal

2. The first point taken is, that the Court below is wrong in holding the suit to be barred by limitation against defendants Nos. 6--12. This decision, however, seems to me clearly right. These defendants claim through Akram's daughters and were made parties more than 12 years after the due date. This delay, according to the Court below, was due to the plaintiff's laches. That is a finding that I have no power to disturb in second appeal and is, moreover, perfectly reasonable. If a man waits till the last moment of the long period allowed him before suing on a mortgage, he has no reason to be surprised if he finds that he cannot bring all necessary parties on the record in time. It is argued that limitation is saved by a payment of interest by Akram's widow. But this could not, in my opinion, affect the defendants Nos. 6--12 who do not claim through the widow but through the daughters. No doubt, it has been held, that an acknowledgment by a mortgagor is effectual to save limitation against purchasers from him even if made after the purchase. Bat here, after Akram's death, his widow and daughters were jointly liable to pay the debt, and, having regard to the analogy of Section 21 Sub-section (2) of the Limitation Act, I do not think that a payment by the widow would save limitation against the daughters much less against the purchasers from the daughters. It is argued that the gift by Akram to the daughters was free of encumbrances and that, therefore; the widow must be regarded as the sole person liable to pay the debt. But there is no reason whatever for supposing that the gift to the daughters was free of encumbrances. In this connection, I may refer to the case of Narayana Ayyar v. Venkataramana 25 M. 220. There is a remark in the case of Saroda Charan Chuckerbutty v. Durga Ram Dey Sinha 14 C.W.N. 741 : Ind. Cas. 484 : 37 C. 461 : 11 C.L.J. 484 that may seem at variance with this view, but it seems to have been a casual observation and not the decision of the Court,

3. Next, it is argued that even if the suit is barred against the defendants Nos. 6--12 personally, the mortgage can still be enforced against the land. But this view seems to me untenable. I do not see how the plaintiff could possibly get a decree to sell the land in the possession of these defendants in satisfaction of his mortgage when, at the same time, it is held that his suit as against them must be dismissed.

4. Thirdly, it is argued that the remaining property should be held liable for the whole debt. But, as I have observed, the Court below has held and very reasonably held that the bar of limitation has been created by the plaintiff's laches and, therefore, on the authority of the decision in Imam Ali v. Baij Nath 10 C.W.N. 551 : 3 C.L.J. 576 : 33 C. 613 this contention of the appellant cannot be sustained.

5. Fourthly, it is argued that the claim of the defendants Nos. 6--12 to hold 4 hals of land by a title paramount to the mortgage ought not to be decided in this suit. No doubt, if this were the only issue between them and the plaintiff, they might be expunged from the record and this matter might be left for decision in another suit. But when they are necessarily made parties as puisne purchasers, it would cause a useless multiplication of suits to leave the question of their rights as prior purchasers undecided.

6. All the points taken on behalf of the appellant fail and the appeal roust be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //