SADA SHIVA Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is a special appeal filed against the judgment of a learned single Judge of this Court dated the 19th December, 1956.

(2.) The suit out of which this appeal arises was filed by one Gajodhar. This suit was for recovery of an amount of Rs. 600/- on the basis of a simple mortgage deed dated the 13th April, 1931. This mortgage deed was admittedly in favour of three persons, who were the mortgagees under this mortgage. One was Jagannath, who had advanced a sum of Rs. 600/-. The second mortgagee was one Suraj Bali, who had advanced a sum of Rs. 900/-, and the third mortgagee was the plaintiff Gajodhar, who had advanced a sum of Rs. 600/-. The total amount of the principal advanced under the -said mortgage deed thus came to Rs. 2,100/-. The mortgagor in the said mortgage deed was Mahabir, who was defendant No, 1 in the suit. Defendants Nos. 2 and 3 were the heirs of Suraj Bali. Defendants Nos. 4 and 5 were the heirs of Jagannath, the third mortgagee. The plaintiff's case was that Jagannath's mortgage money was paid off by the mortgagor in the year 1937 and Suraj Bali's mortgage money was paid off in the year !l944. The plaintiff's dues were not paid, hence he brought the present suit on the 25th July, 1949, for recovery of the said amount of Rs. 600/- on the basis of the aforesaid mortgage deed.

(3.) The suit was resisted by the defendants on a number of grounds which are not relevant at this stage. The sole plea which is relevant at this stage is the plea of limitation. This plea has been hotly contested between the parties throughout. The plea of limitation, as it has arisen before us, relates to Section 20, of the Limitation Act. According to the terms contained in the mortgage deed itself, the suit of the plaintiff would obviously be time-barred. The date of the mortgage was 13-4-1931. The period fixed in the mortgage deed was a year and a half. Adding the period fixed in the mortgage to the period of 12 years, which is the period of limitation for bringing a suit on the basis of a simple mortgage, the limitation for the filing of the suit would expire in the year 1944. The present suit was brought in the year 1949. The present suit would, therefore be barred by time unless limitation was saved by the provisions of Section 20 of the Limitation Act on which the plaintiff relied for extending the said period of limitation. The case of the plaintiff put before us is that certain payments were made by the mortgagor towards the interest of the mortgage money prior to the expiry of the period of limitation, i. e,, prior to 1944. It may be mentioned at this stage that initially in the plaint the plaintiff had relied on certain endorsements regarding payments on the mortgage deed. This case was, however, altered at the appellate stage. At that stage the plaintiff amended this part of his case and relied on certain payments made by the defendant towards interest which payments, according to the plaintiff, were recorded by the defendant in his account-books. The first appellate Court allowed this plea. to be raised by the plaintiff. Tt remanded the suit to the trial Court on this ground. The trial Court allowed the parties to adduce fresh evidence on this particular point. It cannot, therefore, be said that the parties were taken by surprise by the introduction of this fresh case. After taking the evidence of the parties and considering it, the trial Court came to the conclusion that certain payments were made by the defendant to the plaintiff towards the interest due under the said mortgage, and that these payments were recorded in his account-books. It further found that these payments were made before the expiry of the period of limitation. In view of these findings, it was of opinion that Section 20 of the Limitation Act was complied with. It accordingly decreed the plaintiff's suit with costs.