1. This is an appeal by defendant No. 3 arising out of a mortgage suit brought by the plaintiff on a mortgage dated the 2nd Jaistha 1306 (1899) executed by defendant No. 1 and one Lakhan Chandra Dey since dead. The defendant No. 3 is a transferee of Lakhan's interest in the mortgaged properties. The plaintiff purchased the mortgage in 1919 and brought a suit on it for recovery of amount then due thereon by a sale of the mortgaged properties. The defendant No. 1 admitted the mortgage and his liability under it. The defendant No. 3 among other pleas raised the plea that the suit was barred by limitation. The plaintiff's case was that several payments were made by the debtors, the last being a payment of Rs. 30 in 1908. The First Court did not believe this payment and dismissed the plaintiff's suit as against all the defendants except defendant No. 1. On appeal the learned Subordinate Judge has found that the payment of Rs. 30 was proved and that the amount was paid an account of interest. On this finding he decreed the plaintiff's suit in full against all the defendants.
2. Several points have been taken before us in support of the appeal. It is first argued that as the endorsement of this payment of Rs. 30 on the back of the bond does not show that the payment was made on account of interest, the Court below was wrong in law in allowing the plaintiff to prove by oral evidence that the payment was made on account of interest. This point seems to be concluded by authority and cannot be raised now. In the case of Hem Chandra Biswas v. Puma Chandra Mookerjee 35 Ind. Cas. 638 : 44 C. 567 : 22 C.W.N. 190, it has been held that where payments are made for the debt, but there is nothing to show whether they have been made in respect of the principal or interest, the Court is entitled to find out on the evidence for what purpose the payments were made. The same view was taken in the case of Charu Chandra Battacharjee v. Karam Buxa Sikdar 43 Ind. Cas. 812 : 27 C.L.J. 141. There are other decisions on this point and it must now be taken to be firmly settled that the words 'as such' in Section 20 of the Limitation Act mean that the payment must be made on account of interest which fact may be proved from the circumstances of the case from which payment as interest may be directly inferred and may be established (sic) evidence. In the present case the (sic) shows the payment of Rs. 30 over the signature of Lakhan Chandra Dey. The learned Judge has found that at the time when this payment was made there was about Rs. 230 due on account of interest and principal. Deducting the amount of principal the balance was due on account of interest. This fact was taken into consideration in believing other evidence that the amount was paid on account of interest. He further remarked that no body on the side of the defendant said that the payment was made on account of principal. On a consideration of the evidence and the circumstances of the case he says as follows: 'I, therefore, see no reason to disbelieve the plaintiff's evidence that Rs. 30 was paid on account of interest. This finding based on the evidence decides this point.'
3. The next question raised is that according to Section 20 of the Limitation Act, the payment must be made by the person liable to pay the debt: and as there were two mortgagors in order to bring the case under Section 20, the payment must be made by both the mortgagors together and that payment by one only was not such as was contemplated by that section. No authority has been cited for this proposition of law which to my mind is a novel one. There can be no question that Lakhan, one of the mortgagors, was a person liable to pay and that he could not only pay his share of the debt but could have paid the entire debt under the mortgage-deed; and under the law every mortgagor is liable for the entire debt secured by the mortgage. I do not think that the expression 'person liable to pay' means the entire body of persons liable to pay' the debt.
4. The third point argued is that the bond was not properly and legally proved. This point was raised in the defendants' written statement and an issue was joined in the First Court which was in these terms: 'Was the bond in suit executed and attested according to law'? The learned Trial Court went into the evidence and found that it was duly executed and attested. He mainly relied upon the evidence of the scribe who proved execution of the document. The plaintiff appealed against that portion of the decree of the First Court which dismissed the suit as against defendants Nos. 2 to 4 but these defendants did not prefer any cross-appeal or in any way object to the finding of the First Court on this issue. It cannot be said as a matter of law that a scribe cannot be an attesting witness. It is a question of fact which must be determined by a Court of fact. We have not the advantage of the view of the Court of Appeal on this question and we do not think that we should be justified in allowing the appellant to raise this question in appeal for the first time in this Court. But a prayer was made that the case might be sent to the lower Appellate Court for trial of this issue. We do not think that we should be justified in granting this prayer. The defendants did not choose to take exception to the finding of the Trial Court and it must be taken that they had acquiesced in it. This question cannot, therefore, be re-opened at this stage.
5. It is lastly contended that there should have been no personal decree against the appellant. It seems to us that this ground is taken on a misreading of the decree passed in the Court below. There can be no personal decree as is evident from the length of time between the execution of the mortgage and the institution of the suit. The decree directs the defendants to pay the amount of the claim with costs of the suit and interest within three months from the date of the decree, failing which the decree shall be made absolute and the decretal amount should be realised from the sale of the mortgaged properties. This decree cannot be considered as a personal decree against the mortgagors.
6. All the points taken on behalf of the appellant fail and this appeal is dismissed with costs.
7. I agree.