SUNDRAM Vs. S K MOHAMMED KHANI

JUDGEMENT

(1.) Preliminary decree in a suit forrcalisation of mortgage amount is challenged by the defendants.

(2.) Ext.A - 1 usufructuary mortgage dated 18-8-1961 involves a lease back by the appellants evidenced by Ext. A - 2. on the same date. The transaction is, therefore, hit by the provisions of Debt Relief Act 2 of 1970, which converts the mortgage by statutory fiction into a simple mortgage enabling the mortgagee to realise only the mortgage amount with 6% interest. That alone was decreed. Plea of discharge directed to be considered in the final decree is not under challenge before me and hence I am not expressing anything on that aspect.

(3.) Main attack was against rejection of the plea of limitation. Though the mortgage and lease back were on 18-8-1961, the suit was filed only 27-7-1978. Period of limitation under Article 62 is 12 years from the date on which money became due. Ext.A1 provides for a term of three years. Therefore, the contention is that the suit ought to have been filed on or before 18-8-1976. Ext. B - 1 to B - 4 are the rent receipts, under the lease transaction, issued by the plaintiff and admitted by appellants. The last one Ext.B - 4 dated 16- 10-1967 and on its basis enlarged period of limitation was claimed till 16-10-1979 as an acknowledgement under Section 19 of the Limitation Act. The contentions are that Ext.B - 4 can not operate as acknowledgement because (1) it is not in the handwriting of, or in a writing signed by the appellant who were making the payment as enjoined by the proviso to Section 19 of the Limitation Act and (ii) Ext. B -4 is not before the expiration of the period of three years provided under Ext. A - 2 lease back and hence the payment will not come under Section 19.