RADHOMAL Vs. BHAGWANDAS

JUDGEMENT

(1.) THIS is an appeal by the creditors who are displaced persons and whose application under section 10 of the Displaced Persons (Debts Adjustment) Act, 1951, has been dismissed by the Tribunal on three separate grounds viz., (1) limitation. (2) absence of legal necessity and (3) that all the defendants are not displaced persons. Actually, the legal necessity is patent on the face of mortgage of the immovable property, because the debt was incurred for the payment of the price of this very property, which had become the co-parcenary property of the defendants' joint family. Similarly, though one of the defendants was born in India, his father had migrated; so that the claim was again a joint family of displaced persons. Thus, the two grounds viz., of the want of legal necessity and that one of the defendants was not a displaced person, cannot be maintained.

(2.) IT is only necessary to investigate fully whether the creditors having opted to sue as unsecured creditors under section 16 (5) of the Act, limitation should be calculated on the basis of the instrument being a registered bond for payment of money, as under Article 116 of the old Indian Limitation Act, or as a claim for money secured by an immovable property under Article 132. The transaction being dated 18-11-1946 with a three-year period for payment which brings it to 18-11-1949 and the suit being filed on 3-9-1960, it is time- barred under Article 116, but in time under Article 132.

(3.) IT is clear that in the instant case, the creditors opted to sue as an unsecured creditors. At the top of the application, sections 10 and 16 (5) are clearly set out. Further, in the body of the application (Paragraph 4), the creditors aver:- "That they elect to be treated as unsecured creditors in relation to the debt stated above and make the opponents personally liable to pay up the amount in application as contemplated in section 16 (5) of the above said Act." Any doubt is further cleared by the fact that the relief sought is a bare money decree for which the debtors would be personally liable and not any of the alternative ways in which the security could be enforced outside West Pakistan.