ADIRAJA ARIGA Vs. K BEERANNA RAI

JUDGEMENT

(1.) THIS second appeal arises out of a suit on a mortgage executed by defendants 1 to 3 in favour of the plaintiff on 9-6-1941, Ex. A-1. The suit properties belonged to one Padmayya Kottari and he mortgaged the properties with the predeces-sors-ininterest of the plaintiff under Ex. A-2, dated 12-4-1927 for a sum of Rs. 5000. The date of the death of Padmayya Kottari is nut in evidence but it is stated that he died sometime between 1927 and 1941. He made a testamentary disposition of his properties by his last will and testament Ex. A-3 dated 9-7-1925 giving defendants 1 to 3, his three sons, a life estate in the properties and the vested remainder absolutely to his daughters, defendants 4 to 7. The plaintiff as the heir of one of the mortgagees under Ex. A-2 became entitled to a moiety of the mortgage amount and obtained the suit mortgage from defendants 1 to 3 and laid the suit on that mortgage.

(2.) THE defence was that the Suit mortgage was not supported by consideration since the consideration under Ex. A-1 is a moiety of the amount due under the earlier mortgage Ex. A-2 and since on the date of the execution of Ex. A-1, namely, 9-6-1941, Ex. A-2 had already become barred by time and that Section 25 (3), Contract Act was not applicable since the claim under Ex. A-2 was a debt which defendants 1 to 3 were under no personal obligation to pay. The trial Court accepted the defendants'- contention and dismissed the action. In appeal the learned District Judge held that Ex. A-1 was not in renewal of a barred claim under Ex. A-2 since tin the date of Ex. A-1, Ex. A-2 had not become unenforceable by reason of lapse of time under the law of limitation. He however did not consider the question whether in any event Ex. A-1 could be a fresh contract under Section 25 (3), Contract Act.

(3.) IT is now-urged by learned counsel for the defendants-appellants that period of limitation prescribed for a suit on a mortgage under Article 132 being 12 years when the money sued for becomes due and that 12 years from the date when the money had become payable under Ex. A-2 having expired, a period of two years being provided as the period for payment, on the date of Ex. A-1 the claim had become barred. The question for determination is whether it could be said that the claim under Ex. A-2 had become barred under the law of limitation and had become unenforceable and therefore Ex. A-1 was in renewal of a barred debt? Section 3, Limitation Act provides that every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by Schedule 1 shall be dismissed, although limitation has not been set up as a defence. The period of limitation prescribed in Schedule 1', in so far as the suit on a mortgage is concerned, is 12 years under Article 132. There can be no doubt that in this case the 12 years' period from the date when the mortgage amount had become payable under Ex. A-2 had expired on 12-41941. The period of limitation prescribed for a suit had therefore expired on the date of Ex. A-1 which was 9-6-1941. But the question that still remains to be considered is whether the claim under Ex. A-2 had become barred by the law of limitation. Section 4 provides that "where the period of limitation prescribed for any suit. . expires on a day when the Court is closed, the suit. . . may be instituted. . . . . on the day that the Court reopens". It is found that the Sub-Court in which the suit, on Ex. A-2 could ordinarily be instituted was closed on the date of the expiry of the period which was on 12-4-1941. and the reopening date was some time after 9-6-1941. It was therefore open to the mortgagees under Ex. A-2 to have enforced the mortgage claim by instituting the suit and in that view the debt could not be considered to have become barred on 0-6-1941, when Ex. A-1 was executed. It is not the period of limitation that is prescribed under Schedule 1 that will be relevant in considering the present question but the fact or otherwise whether the mortgage debt had become barred on the date when the fresh document Ex. A-1 was executed. There can be no doubt that the claim had not become barred and there is no question of executing a document in respect of a barred debt, and the question of absence of consideration does not therefore arise.