PERIYA AKKANDI CHETTY Vs. RETHINAGIRI CHETTY AND ORS.

JUDGEMENT

(1.) THE question involved in this second appeal is whether Section 13 of the Indian Limitation Act saves the suit from being barred against the appellant who was the third defendant in the trial Court. The suit was upon a mortgage executed by the first defendant in favour of the plaintiff on the 22nd April, 1916. The executant left British India in 1920, and returned a few days before the suit. After his return, the present suit was filed impleading the mortgagor and the appellant who was the purchaser of portions of the mortgaged property from the 1st defendant. The 1st defendant sold some properties to the appellant and some others to the third respondent who was the fourth defendant in the suit and then left for Penang in the year 1920. There was some doubt whether before he left India, the first defendant had disposed of all his properties. It has now been made clear by the production of the registration copy of a sale deed which though referred to in the written statements was not actually exhibited in the tower Court. It is said in the written statement that the first defendant had sold all the properties before he left India. There Was also some evidence even on the plaintiff's side to this effect. But I wanted to satisfy myself whether it was really so. Sale deeds were filed and exhibited with respect to two of the three mortgaged properties. As regards the other I directed the original or a registration copy of the sale deed to be produced. That was done and I marked it as Court Exhibit I. The question has now to be decided on these facts.

(2.) THE first defendant, the mortgagor, sold all the properties, some to the appellant and some to the third respondent.. He had no interest whatever in the mortgaged properties but he was still liable under a personal covenant. He left India in 1920 and returned in July, 1941. The suit was filed on the 5th August, 1941. All this time, the third and fourth defendants have been residing in India. The appellant's contention is that the suit is not saved against him and that Section 13 of the Limitation Act on which reliance is placed helps the plaintiff only so far as the absentee defendant is concerned. Both the lower Courts repelled this contention and decreed the suit. The relevant portion of Section 13 runs thus:

(3.) AFTER stating that the question was not covered by any authority India, the learned Judges referred to some decisions of the English Courts and pointed out that the liability of several executants of a document was joint and several as laid down under Section 43 of the Indian Contract Act, that Section 249 of the Indian Contract Act enunciated the same principle as regards partners and that consequently the plaintiff could have filed a suit for the recovery of the whole of the amount against the executants who were in British India. It was therefore held that as a suit could have been filed against such defendants, the suit was barred by the plaintiff's inaction for over the statutory period. They held that the bar was not saved merely by reason of the absence of one of the defendants. It was held by Lord Denman, C.J., in Fannin v. Anderson, (1845) 7 Q.B. 811, that if one of the defendants was absent in a foreign country, the plaintiff was entitled to have the period of absence deducted in his favour as against the particular defendant and his co -promisors; to the same effect is the decision of Jervis, J., in Towns v. Mead, (1855) 16 C.B. 123. These two decisions were quoted with approval in Roddam v. Morley, (1857) 1 De G.J. 1 . These decisions were brought to the notice of the learned Judges who decided the case of Palaniappa Chettiar v. Veerappa Chettiar, (1917) 34 M.L.J. 41 :, I.L.R. 413 Mad. 446. The learned Judges stated that the English Statute is not very different from Section 13 of the Indian Limitation Act. After referring to the three decisions of the English Courts above referred to, the learned Judges said this: