DADIA BHAILAL MOTICHAND Vs. VANAD MAGANLAL HIRABHAI

JUDGEMENT

(1.) The appellant in this Second Appeal is the original plaintiff and the respondent is the original defendant. The plaintiff filed a suit being Civil Suit No. 300 of 1957. in the Court of the Civil Judge Junior Division Jamnagar to realise the amount alleged to be due to him at the foot of the mortgage executed in his favour by the defendant. The only contention that appears to have been urged before the learned trial Judge was regarding limitation and the learned trial Judge held that the suit was barred by limitation and he therefore dismissed the plaintiffs suit. The plaintiff thereupon went in appeal and at the stage of appeal the learned District Judge Halar confirmed the decision of the trial Court and dismissed the appeal. He also held that the suit was barred by limitation. Thereafter the original plaintiff has filed the present Second Appeal against the decision of the learned District Judge.

(2.) In order to appreciate the point regarding limitation it would be necessary to set out certain facts. On September 4 1944 the defendant created a mortgage with possession in favour of the plaintiff and the mortgage was to secure a sum of Rs. 1800.00. The interest was to be charged at the rate of 4 1/2 % per annum though in the judgments of both the trial Court as well as the first appellate Court it has been stated that the interest was to be charged at the rate of 9 % per annum. The contention of the plaintiff was that before he filed the suit he had received two amounts one of Rs. 150/and the other of Rs. 85/towards interest and the payment of Rs. 85/was on May 10 1950 and the suit was filed on June 19 1957

(3.) The arguments in this Second Appeal have turned upon the interpretation of sec. 20(2) of the Indian Limitation Act 1908. Under sec. 20. provision has been made for extending the period of limitation. Section 20 provides that where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his duly authorised agent a fresh period of limitation shall be computed from the time when the payment was made; and the proviso to sub-sec. (1) of sec. 20 does not apply to sub-sec. (2) of sec. 20. Sub-sec. (2) of sec. 20 provides that where mortgaged land is in the possession of the mortgagee the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of sub-sec. (1) and as I have just now pointed out the proviso to sub-sec. (1) does not apply where the mortgaged land is in possession of the mortgagee. In the present appeal two questions arise:--firstly whether the immovable property in suit which was a house can be said to be land within the meaning of sec. 20 (2) of the Limitation Acts secondly whether the mortgagee was in possession of the mortgaged property in view of the fact that on the very day on which the registered mortgage was created in favour of the plaintiff viz. on September 4 1944 a rent-note was executed by the mortgagor in favour of the mortgagee and rent fixed under the rent-note was the ex .ct equivalent to the interest payable on the principal amount at the rate of 4 1/2% per annum.