VISHNU BHATTA SUBRAYA BHATTA Vs. DOMAKKEE

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage bond; and the only question raised in the appeal is whether or not the suit was instituted within twelve years from the date on which the money sued for became due.

(2.) The bond bears the date 27-3-1909 and was in favour of the predecessor-in-interest of the two plaintiffs in the suit and defendants 7 to 9. The mortgagor and the mortgagee belonged to Kasaragod Taluk and the bond is in Kanarese. The principal amount borrowed was Rs. 7800/-. Interest for the loan was fixed at Rs. 456-4-9 per year to be paid by the 30th Phalguna of every year beginning from Saumya (1909-1910). The mortgage money was repayable after twenty years and within thirty years. Some time after the execution of the mortgage, the mortgagor sold the equity of redemption over the mortgaged properties to a stranger and the latter in his turn sold the same to four persons, of whom defendant 1 was one, and his uncle, the predecessor-in-interest of defendants 2 to 6, another. Under their purchase defendant 1 and his uncle took a distinct portion of the mortgaged property (Plaint B schedule). The sale deed fixed the proportionate mortgage debt chargeable thereon at Rs. 8000. They paid only Rs. 1700/- out of it and the suit was for recovery of the balance and interest thereon at 5 1/2% per annum for twelve years prior to the suit by sale of the property purchased by them. The plaint claim amounted to Rs. 10,463.

(3.) Defendants 1 and 2 contested the suit. Besides raising the plea that the suit was barred by limitation they further contended that the debt was liable to be scaled down under the provisions of the Madras Agriculturists Relief Act (Act IV of 1933). According to the plaintiffs the debt was exempt from the operation of the said Act. The learned Additional Subordinate Judge of South Kanara, who heard the case negatived the plea of limitation, but held that the debt was liable to be scaled down under the provisions of the Madras Agriculturists Relief Act. A preliminary decree for sale of the plaint B schedule property was accordingly passed on 18-9-1952 in favour of the family of the plaintiffs and defendants 7 to 9 for Rs. 3682-1-11, with future interest at 6% per annum and proportionate costs. Defendant 1 has preferred this appeal against the said decree.