A. VENKU DIKSHITULU Vs. GUNDU SUBBAYYA SETTI

JUDGEMENT

(1.) THIS is an appeal by the Defendant from the decree of the Court of the Subordinate Judge, Kurnool, in O. S. No. 9 of 1950, filed: for the recovery of the amount due to the Plaintiff on a mortgage Exhibit A -l, dated 4th November, 1930, for Rs. 8,000 executed by the Defendant. The learned Subordinate Judge, who tried the suit, decreed the suit in favour of the mortgagee - for a sum of Rs. 5,962 -1 -10 with proportionate costs and subsequent interest. The Defendant -mortgagor has preferred this appeal and contends that the suit was barred by limitation and, secondly, that the amount due to the mortgagee was less than the amount decreed by the learned Subordinate judge.

(2.) THE facts necessary to appreciate the contentions of the Appellant are these. The Defendant entrusted the mortgage Exhibit A -l for Rs. 8,000 on 4th November, 1930. This was relied upon as an act of insolvency committed by the Defendant and he was adjudged insolvent on 29lh December, 1931, in I. P. No. 73 of 1931. The Insolvency Petition was filed on 2nd February, 1931. AFTER the order of adjudication, the Official Receiver, in whom the estate of the insolvent vested, applied to the Court and got the mortgage debt scaled down to Rs. 6,220 as on 1st October, 1937' with interest at 0 1/4 per cent thereafter. The Official Receiver applied to the Insolvency Court in M. P. No. 204 of 1940 for permission to sell a house in done in order to pay off the mortgage debt due to the Plaintiff. The requisite permission having been granted, the Official Receiver sold the property and paid a sum of Rs. 2932 -6 -8 towards the mortgage debt on 2nd July, 1940. He also made an endorsement of part payment on the mortgage deed Exhibit A -1 in those terms:

(3.) THE next contention of the learned advocate for the Appellant was that part payment by die Official Receiver was inoperative to save limitation under Section 20 (1) of die Limitation Act inasmuch as the Official Receiver was not "a person liable to pay" the mortgage debt and was not a duly authorised agent of the mortgagor who alone was the person liable to pay the mortgage debt. In my opinion, this contention is also untenable. The words "a person liable to pay" in Section 20 (1) of the Limitation Act are words of wide import, not necessarily confined to a person who is personally liable under his covenant or promise to pay the debt.