SUDDAPALLI RAMAIYA AND ORS. Vs. YELAVARTHI SURYANARAYANA

JUDGEMENT

(1.) THE sixth defendant, who is the mother of defendants 4 and 5, mortgaged the suit property; and upon that mortgage a suit was brought and the property sold in Court auction and purchased by the decree -holder, who is the plaintiff, on 22nd November, 1937. A suit was thereupon filed by defendants I to 4 impugning the mortgage and asserting that the sixth defendant had no authority to mortgage the property. Their suit was dismissed in the trial Court; but they carried the matter in appeal to the High Court and obtained an injunction order on 7th November, 1938, restraining the plaintiff from interfering with their possession. That injunction continued in force during the pendency of the appeal, which was ultimately dismissed. The plaintiff took delivery of the property on 12th November, 1941. He then attempted during the course of the execution to obtain mesne profits by way of restitution; but his application was dismissed, it being held that his remedy lay only by way of a separate suit. The plaintiff thereupon filed the present suit for mesne profits from 22nd November, 1937, the date when he purchased the property, to 12th November, 1941. The trial Court held that the plaintiff was entitled to mesne profits only for a period of three years prior to suit, and therefore gave him a decree for the period from 1st December, 1940, (three years prior to the date of the filing of the suit) to 12th November, 1941, the date of delivery. Both parties preferred appeals. Many points of law were raised; and the plaintiff gave many reasons why he should have been given mesne profits for a longer period. He claimed that Article 120 of the Limitation Act applied and not Article 109. He pleaded that time could also be enlarged under Sections 14 and 15 of the Limitation Act, and finally asked the Court to admit as additional evidence the counter filed by defendants 1 to 4 in the execution proceedings. The Court admitted this additional evidence and allowed an amendment of the plaint, and while rejecting arguments with regard to the applicability of Section 14 and Article 120 of the Limitation Act to the facts of the case, held that the plaintiff was entitled to invoke Section 15 of the Limitation Act and that the counter marked as Ex. P -12 amounted to an acknowledgment; and so gave the plaintiff a decree for the period from 7th November, 1938, the date of the order of injunction passed by this Court, up to the date of delivery.

(2.) IT is argued in this Court that the lower appellate Court was wrong in applying Section 15 of the Limitation Act and in permitting Ex, P -12 to be marked, and that even if Ex. P -12 was properly marked, the recitals therein did not amount to an acknowledgment.

(3.) THIS criticism of Sadasiva Aiyar, J.'s dictum received the approval of the Privy Council in Narayan Jivan Gouda Patil v. Puttabi, (1944) 3 M.L.J. 358. Their Lordships were considering a matter arising out of a suit for injunction. During the pendency of the suit, an order of temporary injunction was passed. The defendant set up a case of adoption which was not accepted by any of the Courts in India; but their Lordships of the Privy Council held that the defendant had proved his case. The defendant thereupon attempted to obtain possession under Section 144, Civil Procedure Code and was met with the plea that his claim was barred by limitation. The matter came before their Lordships again in appeal arising out of the Section 144 proceedings; and it was held by them that the lower Courts had rightly found that the suit was barred by limitation. They further held that the period of limitation could not be enlarged by Section 15 of the Limitation Act. The last but one paragraph in the judgment of their Lordships ends with this passage: