ARITHOTTATHU SWAMIAR Vs. CHACKI MAMMA

JUDGEMENT

(1.) THIS is a plaintiff's appeal against a judgment and decree of the Kottayam District Munsiff 's Court dismissing his suit on a hypothecation bond as barred by limitation. The bond was for the sum of Rs. 800/- and it bears the date 10. 4. 1099. The suit was instituted only on 30. 3. 1120 long after the expiration of twelve years after the money became due. Prima facie the suit was therefore barred by time but this prima facie case was endeavoured to be answered by invoking the aid of Ss. 14,15 and 19 of the limitation Act and also on the ground that in the events that happened the plaintiff had obtained a fresh start well within time to entitle him to bring the suit when it was actually brought. These grounds did not however find favour with the learned District Munsiff who tried the suit and he therefore dismissed it. Hence this appeal by the plaintiff.

(2.) THE facts of the case and the events the appellant relies on for exclusion of time or for a fresh start can be briefly stated as follows: THE suit hypothecation bond was executed by Defendant 1 on 10. 4. 1099 and the document proceeded as if the properties over which the charge was created belonged exclusively to the executant. Provision was made in the document for payment of interest every year and the document expressly gave authority to the hypothecatee if need be to sue for arrears of interest alone. Defendant 1 allowed interest to fall into arrears and in O. S. 280 of 1105 on the file of the lower court the hypothecatee brought a suit against Defendant 1 and the hypotheca to realise the arrears of interest accrued due. In execution of the decree obtained in that suit the equity of redemption over the hypotheca was sold and purchased by the decree holder himself. Not long after the execution sale was confirmed Defendants 2 and 3 instituted O. S. 1125 of 1108 before the lower court for a declaration that the properties charged under the hypothecation bond belonged to a Marumakkathayam Ezhuva tarwad composed of themselves and Defendant 1, that the hypothecation bond was not supported by consideration or tarwad necessity and that the decree and the execution proceedings were invalid and inoperative as against the tarwad and the hypotheca. That suit was instituted on 5. 8. 1108 and the suit had a chequered career. THE predecessor-in interest of the present plaintiff contested it, but a decree allowing the suit in its entirety was passed by the trial court on 4. 6. 1111. On appeal before the District Court the Munsiff's decision was reversed and the case was sent back for fresh trial and disposal. On 25. 7. 1114 the trial court passed a revised decree upholding the validity of the hypothecation bond, the decree and the execution proceedings to the extent of a one-half share over the properties. This time the plaintiffs preferred an appeal to the District Court and their appeal was allowed with the result that the original decree of the Munsiff was restored. Against this appellate decision the present appellant preferred S. A. 333 of 1116 before the travancore High Court and it was disposed of by a Division Bench consisting of krishnaswamy Iyer, C. J. and K. C. Abraham, J. By their judgment dated 21. 1. 1120 the learned judges found that the hypothecation bond was valid and binding on the tarwad of the present defendants in as much as it was supported by consideration and tarwad necessity. THE decision of the lower appellate court that the decree in O. S. 280 of 1105 did not bind the tarwad as it was not obtained in conformity with the provisions in S. 27 of the Ezhuva Act, III of 1100 was however confirmed. THE operative portion of the judgment runs thus: "in the result we hold that Ext. I hypothecation is supported by consideration and necessity and executed by competent persons so as to be binding on the tarwad of plaintiff and second defendant, but that Ext. H decree has not been validly obtained against the tarwad and cannot be enforced against the tarwad properties as such. THE decree and the execution proceedings will to that extent stand set aside and declared inoperative".

(3.) THE question for our consideration is whether the lower court's decision that the suit is time barred is wrong. It is common ground that the Article of Limitation Act applicable to the case is Art. 119 of the Travancore Limitation Act (corresponding to Art. 132 of the Indian limitation Act) which provides a period of 12 years from the time the money sued for became due. THE hypothecation bond does not contain any provision that the money would become due only after a prescribed period. THE money therefore became due immediately the bond was brought into existence. THE lower court has held that there was no valid acknowledgment at all and that view was not sought to be challenged before us. It is therefore clear that unless the exclusion claimed is permissible or the case that a fresh start or cause of action became available to the appellant can be substantiated the lower court's decision dismissing the suit must stand. No equitable ground for the suspension of a cause of action can be added to the provisions of the Limitation Act. We shall therefore proceed to examine the grounds relied upon in the appeal to take the case out of the bar of limitation.