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Umapada Trivedi Vs. Haripada Saha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal801
AppellantUmapada Trivedi
RespondentHaripada Saha and anr.
Cases ReferredKanto Mohun Mullick v. J.C. Galstaun
Excerpt:
- .....schedule 1, lim. act, provides a period of limitation of six years and not three years. if the six years' period is applicable then the payment in question undoubtedly does save limitation, and that has not been disputed before us.4. the only contention on the other side has been that article 116, schedule 1, lim. act, is not the appropriate article to be applied in the present case but article 66, having regard to the decision of the privy council in ganes lal pandit v. khetra mohan mahapatra a.i.r. 1926 p.c. 56. now that was a case where a suit on a mortgage was instituted 10 years after the mortgage debt became due and there was no question at issue there as to whether six years' or on the other hand three years' period of limitation was applicable. the case has been recently.....
Judgment:

Pearson, J.

1. The question raised in this appeal is what is the appropriate article of the Limitation Act in the case of a suit based on a personal covenant in a registered mortgage bond. It appears that in the present case as regards one of this points in the suit the plaintiff relied inter alia upon two payments, one made on 4th April 1922 and the other in April 1925. The mortgage bond itself was dated 17th April 1918. The suit was instituted on 4th September 1926. Of the two payments above mentioned the trial Court held that the first payment was good and that the second payment had not been established. He accordingly decreed the suit on mortgage, but held that the personal remedy was barred.

2. On appeal the lower appellate Court seems to have acted under a misapprehension. After summarizing the conclusions of the trial Court the learned Judge states as follows:

Assuming that Article 116, Lim. Act, applies even the payment of Rs. 19 made in 1328, B. S. that is to say the first payment made in April 1922, which has been believed, admittedly does Hot save limitation.

3. It does not seem to have been present in the mind of the learned Judge, in stating that conclusion, that Article 116, Schedule 1, Lim. Act, provides a period of limitation of six years and not three years. If the six years' period is applicable then the payment in question undoubtedly does save limitation, and that has not been disputed before us.

4. The only contention on the other side has been that Article 116, Schedule 1, Lim. Act, is not the appropriate article to be applied in the present case but Article 66, having regard to the decision of the Privy Council in Ganes Lal Pandit v. Khetra Mohan Mahapatra A.I.R. 1926 P.C. 56. Now that was a case where a suit on a mortgage was instituted 10 years after the mortgage debt became due and there was no question at issue there as to whether six years' or on the other hand three years' period of limitation was applicable. The case has been recently considered by a Pull Bench of the Madras High Court in the case of Ratna Sabapaty Chettiar v. Devasigamoney Pillai A.I.R. 1929 Mad. 53, and after pointing out there in the course of the judgment, that all the High Courts have held that Article 116, Lim. Act, governs suits to recover money on personal covenant in a registered mortgage bond the Full Bench gave effect to that contention in spite of th dictum in Ganes Lal's case. A.I.R. 1926 P.C. 53 It was pointed out by the learned Chief Justice in the case of Kanto Mohun Mullick v. J.C. Galstaun : AIR1930Cal547 , that ever since 1884 the Courts in India had occasion not infrequently to consider this very question and have been all along unanimous in thinking that the period of such limitation is not three years but six; and although it may be said that that case furnishes no actual authority to this Court for the proposition set out, it is we think clear that the article properly applicable in such a case is Article 116 in accordance with the view taken by the Madras High Court in the case above referred to.

5. The result is this appeal must be allowed. Costs must follow the event.


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