1. This appeal arises out of a suit brought to enforce a mortgage. The bond recites that at the time of its execution 3 bishes 4 hurts of paddy were owing by the defendant in the present suit to the plaintiff. It next provides that the paddy should be repaid or delivered by certain instalments and that on unpaid instalments interest should run at the rate of 3 chattaks per kurt.
2. In reliance upon the decision of a Divisional Bench of this Court in the case of Bash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 : 24 C.L.J. 348. it is contended by the appellant that the present suit is not one brought to enforce payment of money charged upon immoveable property and that the rule of limitation applicable is the rule to be found in Article 116 or Article 120 of the Schedule to the Limitation Act. If the six years' rule of Limitation be applicable, it is not and cannot be contested that the suit when brought was out of time. Thus the question is whether the suit out of which this appeal arises is in fact one brought to enforce payment of money charged upon immoveable property and so the 12 years' rule of limitation applies. Though the bond stipulates for the payment of the principal amount of paddy in paddy and also provides for interest calculated in paddy, it contains the valuation of the principal amount at Rs. 119-8-0 and it further provides as follows: 'if I fail to make payments according to this bond and you have to bring a suit, you will be entitled to value the paddy due, on account of principal at the price which has been mentioned above, and you will be entitled to value the paddy due on account of interest at the market rate for each year. You will be entitled to realize the same by sale of the mortgaged property.'
3. We have not before us the mortgage bond that was under consideration in the case reported as Rash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 : 24 C.L.J. 348. But if there was express referenoe in the said mortgage bond to the money value of the paddy, I should be prepared, on the strength of the clause which I have quoted, to hold that the present case can be distinguished from that reported as Bash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 : 24 C.L.J. 348. But I desire further to say that if the present case cannot be distinguished from the one to which I have just referred, I am not prepared to concur in or follow the view taken in that case that where a bond hypothecates property to secure payment of paddy, the' suit brought upon that bond is not a suit to enforce payment of money charged upon immoveable property. I agree on that point in the reasoning of Mr. Justice Mookerjee in the case of Nilmoney Sinha v. Hardhan Das 2 Ind. Cas. 111. In this view, in my opinion, this appeal must be dismissed with costs.
4. I regret that I cannot agree with the view taken by my learned brother. Looking at the document it appears to me that the rule laid down in the case of Bash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 : 24 C.L.J. 345. is applicable and I, therefore, think that the appeal should be allowed.
5. In accordance with the views taken by Teunon, J., this appeal is now dismissed with costs.