JAINABBIBI Vs. SHANKAR SAKHARAM

JUDGEMENT

(1.) THIS is a plaintiff's appeal from the dismissal of his suit by the Joint Civil Judge, Senior Division, Thana. The suit was to recover an amount of Rs. 18,000 claimed due on two mortgages. The two mortgages were mortgages of the same property, one was for an amount of Rs. 4,000, and the other was for an amount of Rs. 5,000, and these mortgages were executed on 6 -2 -1925, and 11 -3 -1926, respectively. Interest was provided to be at twelve per cent. per annum in the first mortgage and at nine per cent. in the second. The period for payment under the first mortgage was three years, while under the second mortgage payment was to be by instalments, the date of the last instalment being 16 -12 -1929. There was a default clause that in default of any two instalments the whole amount was to become due. The plaintiff claim -ed that the amount due under the mortgages considerably exceeded the amount of Rs. 18,000, and he limited his claim according to the rule of damdupat. Only Rs. 400 are said to have been paid under the mortgages, and this payment was on 26 -2 -1926. The suit was filed on 25 -10 -1945, and prima facie appeared well beyond the period of limitation under Article 132, Limitation Act. The plaintiff, however, relied on certain acknowledgments; and the main question in the suit and the only question in this appeal was and is whether the acknowledgment within twelve years of the suit, sufficient under Section 19, Limitation Act to renew the period of limitation, has been proved. In the suit the plaintiff relied upon a number of statements of the defendant, which she claimed to be acknowledgment. One of these, a written statement, dated 29 -11 -1930, was accepted by the learned Judge as constituting an acknowledgment under Section 19, Limitation Act. But this acknowledgment in itself was of no avail to the plaintiff as it was made more than twelve years before the date of the filing of the present suit.

(2.) BEFORE us Mr. Coyajee for the plaintiff -appellant has based his case on a written statement filed by the defendant in Suit No. 15 of 1935, or rather on this statement together with the defendant's reply to a notice given by the plaintiff shortly before that suit was filed. The date of the reply to the notice is 24 -10 -1934, while the date of the written statement is 6 -4 -1935. Suit No. 15 of 1935 arose in this way. In or about the year 1932 Government in default of payment of assessment was taking or was considering taking steps under the Land Revenue Code, and assessment amounting to Rs. 170 -14 -3 was paid by the plaintiff. In his notice before suit dated 19 -10 -1934, the plaintiff stated that the Government dues for the year 1931 -32 payable by the defendant had to be paid by the plaintiff, the total amount being Rs. 170 odd. The notice stated that the defendant had not re -paid this amount and called upon him to do so. By his reply to the notice the defendant stated as follows :

(3.) IT is not necessary, therefore, to consider further points raised by Mr. Joshi on behalf of the defendant, that there are in this case two mortgages, and a general admission as to mortgage would not be sufficient to cover two mortgages. In my opinion, the decision of the trial Court is right, and this appeal must be dismissed with costs.