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Kandarpa Naran Mandal Vs. Sridhar Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.518
AppellantKandarpa Naran Mandal
RespondentSridhar Roy and ors.
Cases ReferredRash Bihari Das v. Kunjabihari Patra
Excerpt:
limitation act (ix of 1908), schedule i, articles 116, 120, 132 - mortgage for loan of paddy, suit on--limitation. - .....by the plaintiff in a suit to enforce a mortgage security. the parties to the suit are not the original mortgagor and the original mortgagee. they are persons to whom the mortgage and the equity of redemption have respectively been transferred. the courts below have concurred in dismissing the suit on the ground that it is not maintainable in its present form. whatever may be said on that subject, on which we express no opinion, a preliminary point has been taken before us on behalf of the defendants that the suit is barred by limitation. the contention is that inasmuch as the mortgage-bond was executed by the respondent in respect of a loan, not of money but of paddy, article 132 of the limitation act has no application and the suit is governed either by article 116 or article 120......
Judgment:

1. This appeal is preferred by the plaintiff in a suit to enforce a mortgage security. The parties to the suit are not the original mortgagor and the original mortgagee. They are persons to whom the mortgage and the equity of redemption have respectively been transferred. The Courts below have concurred in dismissing the suit on the ground that it is not maintainable in its present form. Whatever may be said on that subject, on which we express no opinion, a preliminary point has been taken before us on behalf of the defendants that the suit is barred by limitation. The contention is that inasmuch as the mortgage-bond was executed by the respondent in respect of a loan, not of money but of paddy, Article 132 of the Limitation Act has no application and the suit is governed either by Article 116 or Article 120. This contention is founded on the ruling of the late Chief Justice Sir Lawrence Jenkins and Mr. Justice Holmwood in the case of Rash Bihari Das v. Kunjabihari Patra 37 Ind. Cas. 805 : 24 C.L.J. 348.

2. The learned Pleader for the plaintiff has argued that that decision cannot be supported, and that the word 'money' in Article 132 should be construed as including money's worth. We are bound, however, to follow the decision unless we are prepared to refer the matter to a Full Bench, and as at present advised we are not disposed to take that course. On the face of the plaint there can be no doubt that this suit was brought more than six years after the due date of the bond, the date on which the paddy borrowed should have been repaid. It is said that the defendants in their written statement pleaded payment of interest for several years, but that plea was negatived in that Court and the plaintiff has given no credit for any payment of interest such as might have saved the suit from the bar of limitation. Some reference has been made in the course of the argument to a consent decree made in a suit between the original mortgagor and the original mortgagee. The decree is not referred to in the plaint. And even if the compromise amounted to an admission of liability by the mortgagor, that admission was made more than six years before the date of the institution of this suit and cannot help the plaintiff. In our opinion the objection of the respondent that the suit is barred by limitation is an objection which on the face of the record must prevail.

3. The result is that this appeal must be dismissed with costs.


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