MANGAPATHI NAIDU Vs. M K KRISHNASWAMI NAIDU

JUDGEMENT

(1.) The plaintiff whose suit on a mortgage (Ex. P-1) dated 5th June 1909, was decreed by the trial Court and dismissed by the lower appellate Court has preferred this second appeal. The only point argued before me is whether the suit is barred by limitation. The suit was instituted on 27th July 1944 to enforce the mortgage (EX. P-1). There are two endorsements of payments on the mortgage bond, EX. P-1 (a) dated 30th July 1920 and EX. P-1 (b) dated 29th July 1932. It is common ground that Ex. P-1 (a) is a valid acknowledgment of liability under Ex. P-1 and is & fresh starting point of limitation. Exhibit P-1 (b) is in these terms: "The amount of Rs. 100 paid and endorsed (sellu vaithadu) by us five persons." Then follow the names and signatures of the debtors. The appellant contends that the Tamil expression " (sellu vaithadu)" implies that there is an outstanding balance still due under the mortgage and that the endorsement, Ex. P-1 (b), therefore, operates as an acknowledgment of liability under Section 19, Limitation Act as held in Ramayya v. Anjayya, I. L. R. (1942) Mad. 405 : (A. I. R. (29) 1942 Mad. 146) even if it be held to be an open payment and, therefore, inoperative to save limitation under Section 20, Limitation Act (before its amendment in 1942) as held by the Privy Council in Ramshah v. Lalchand, 21 Lah. 470 ; (A. I. R. (27) 1940 P. C. 63). A mere endorsement in writing of a payment cannot serve as an acknowledgment of liability under Section 19, Limitation Act unless the Court is able, without overstraining the language, to read into the endorsement not only the fact of a payment but also an implied admission that a further sum is still due. I consider that the lower appellate Court was right in holding that EX. P-1 (b) cannot be construed as an acknowledgment of liability, there being nothing in the endorsement suggesting that any further sum was due. The expression " (sellu vaithadu)" means "paid and endorsed" and not paid 'towards' a debt.

(2.) The appellant next relies upon Act XVI [16] of 1942 which came into force on 30th March 1942 and which amended Section 20, Limitation Act. As is well known the object of the amendment was to supersede the decision of the Judicial Committee in Ramshah v. Lalchand, 21 Lah. 470 : (A. I. R. (27) 1940 P. C. 63), as regards the ineffectiveness of what were termed "open payments" to save limitation under Section 20, Limitation Act of 1908. It is true that the endorsement evidencing the payment Ex. P-1 (b) would be sufficient to save limitation under Section 20, Limitation Act as amended in 1942 but not under the unamended section. The contention of the learned advocate for the appellant is that the law of limitation is part of the processual law of the country, that amendments to the Limitation Act are retrospective in their effect and that the law of limitation applicable to the suit is the law in force at the time it is instituted. According to him, Act XVI [16] of 1942 would, therefore, apply to the present case and the effect of Ex. P-1 has to be decided only on the language of Section 20, Limitation Act as amended in 1942. To support the last contention three decisions of Division Benches of the Patna High Court in Baleswar v. Latafat, 24 Pat. 249: (A.I.R. (32) 1945 pat. 368), Sarab Devaprasad v. Dwarka Prasad, A.I.R. (33) 1946 Pat. 59: (219 I. C. 159) and Jagadish Prasad v. Saligram, A. I. R. (33) 1946 Pat. 60 : (24 Pat. 391) are cited The first of these cases has been followed in the other two decisions and they are all in favour of the appellant. I am, however, with all respect, unable to follow them. It is true that a suit is governed by the provisions of the Limitation Act in force when it is instituted, but this rule has not the sweeping effect attributed to it by the learned Judges of the Patna High Court. It is subject to the condition that the right sought to be enforced had not already been extinguished under the law as it previously stood. Where, as in this case, the right of action on the mortgage had already become barred under the Limitation Act of 1908, as it stood before 1942, the amending Act cannot be invoked for resurrecting and reviving the time barred claim, unless in the Amending Act it is expressly so stated. See Kunhilal v. Gobina, Krishna, 33 ALL. 356: (38 I. A. 87 P.C.), Sachindranath Roy v. Maharaj Bahadur Singh, 49 cal. 203 : (A.I.R. (9) 1922 P. C. 187), Rammayya v. Lakshmayya, I. L. R. (1943) Mad. 1; (A.I.R. (29) 1942 P. C. 54) and Vaidhyalinga Mudaliar v. Srirangathanni, 48 Mad. 883 : (A. I. R. (12) 1925 P. C. 249). The learned Judges of the Patna High Court purported to rely on the decision of the Privy Council in Soniram v. Kanhaiyalal, 35 ALL. 227: (40 I. A. 74) in aid of their conclusion. But it will be found on an examination of the facts of that case that when the Limitation Act of 1877 came into force, the right of the mortgagor's representatives to redeem the mortgage of 1842 had not become barred under the Limitation Act of 1859 and, therefore, it was held that the Act of 1877 applied to the enforcement of rights that were existing and alive when that Act came into force. Their Lordships held that the right of redemption was barred under the Act of 1877. In so holding the Privy Council approved of the High Court's observation that the law of limitation applicable to a suit or proceeding was the law in force at the date of the institution of the suit or proceeding unless there was a distinct provision to the contrary in the Act. This decision, in my opinion, affords no basis for the conclusion reached by the learned Judges of the Patna High Court that a claim barred before the Limitation Act was amended could be enforced after the amendment of the Act taking advantage of the provisions in the Amending Act when the latter does not expressly provide for such revival. The observation in the first of the three Patna cases above cited that it is only in the case of title to property that there is an extinguishment of the right by lapse of time under Section 28, Limitation Act and that this principle of extinctive prescription does not apply to debts may be true-It is on this basis that the debtor who pays a time barred debt or executes a fresh document promising to pay a time barred debt cannot thereafter recall the payment or repudiate the promise on the ground of want of consideration, see Section 25, Contract Act. Sections 60 and 61, Contract Act allow the appropriation of payments, under certain circumstances, to the discharge of time barred debts. It is also true that a Hindu father can renew time barred debts so as to bind the interests of his sons in joint family properties. At the same time it must be remembered that a right in respect of which the remedy is lost is not a right that is enforceable by our Courts and Section 3, Limitation Act is mandatory and compels the Court to dismiss a suit on a barred claim.

(3.) By the amending Act of 1942, the Legislature introduced a new method of interrupting the running of time. The Act may operate retrospectively upon payments and endorsements made before it came into force, though such payments and endorsements were of no avail at the date when they were made, but such a mode of interrupting the running of time will not serve to revive debts, which, according to the provisions of the old law, had already become barred before the date of the amendment. There are some old cases which hold that even if the debt had already become barred before the new Act came into force the new method of interrupting the running of time would avail to revive debts barred before the new Act came into force, Mohesh Lal v. Busumt Kumaree, 6 cal. 340 : (7 C. L. R. 121), Valia Thamburati v.Veera Rayan, 1 Mad. 228. The learned counsel for the appellant also cited the decision in Teagaraya Mudali v. Mariappa Pillai, 1 Mad. 264, in support of the above proposition, but in that case though limitation had commenced to run under Act XIV [14] of 1859, the remedy had not become barred on the date when Act IX [9] of 1871 came into force. I am of the opinion that the correct view is that a remedy by suit barred under the old law cannot be revived by the new enactment enlarging the period of limitation or providing a new mode of interrupting the running of time unless the later enactment expressly so provides. The decisions of the Judicial Committee already cited recognise this principle. For these reasons I am unable to agree with the decisions of the Patna High Court on which reliance has been placed by the appellant.