SUNDARAM Vs. MUHAMMED KHANI

JUDGEMENT

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

(2.) Ext. A1 usufructuary mortgage dated 18-8-1961 involves a lease back by the appellants evidenced by Ext.A2 on the same date. The transaction is, therefore, hit by

(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 on 27-7-1978. Period of limitation under Art.62 is 12 years from the date on which money became due. Ext Al 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. Exts.B1 to B4 are the rent receipts, under the lease transaction, issued by the plaintiff and admitted by the appellants. The last one is Ext. B4 dated 16-10-1967 and on its basis enlarged period of limitation was claimed till 16-10-1979 as an acknowledgement under S.19 of the Limitation Act. The contentions are that Ext.B4 cannot operate as acknowledgment because (i) it is not in the handwriting of, or in a writing signed by the appellants who were making the payment as enjoined by the proviso to S.19 of the Limitation Act, and (ii) Ext. B4 is not before the expiration of the period of three years provided under Ext.A2 lease back and hence the payment will not come under S.19.