RAMCHANDRA SAHU Vs. SUSHILA AGARWAL

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree dated 22.11.1991 passed by the learned Assistant District Judge, Golaghat in TA 17/88 dismissing the appeal and upholding the judgment and decree dated 18.8.1988 passed by the learned Munsiff No. 1, Golaghat in TS 16/86 dismissing the suit of the plaintiff. The plaintiff filed a suit for redemption of the suit property which their predecessor-in-interest gave in mortgage to the processor of the defendant in the year 1956, i.e., on 25.6.1956. The land which is the subject-matter of mortgage is only 7 lechas with a standing house on it at Dergaon. The deed of mortgage is a registered one and that is Ext. 'K'. There was a clause in the deed of mortgage that the amount shall be paid within a period of 5 years from the date of mortgage. The amount could not be paid within that time and ultimately a suit was filed on 2.8.1986. Admittedly the suit which was filed was beyond the period of 30 years as provided in the Article 61 of the Limitation Act, 1963. Article 61 (a) of the Limitation Act provides that suits relating to immovable property by a mortgager to redeem or recover possession of immovable property mortgaged the period is 30 years from which the period begins to run when the right to redeem or to recover possession accrues. The trial Court found that it is not a mortgage, but a mortgage with condition itself and accordingly dismissed the suit. There was an appeal being TA 17/88 before the learned Asstt. District Judge, Golaghat. The learned Judge found that the findings of the learned Munsiff that that is a mortgage by condition itself is not correct and he found it to be a case of mortgage, but at the same, time, he also dismissed the appeal holding that the suit is barred by time as the suit was filed beyond 30 years as indicated above. Hence, this Second Appeal.

(2.) The only substantial question of law formulated in this Second Appeal is - "whether the suit is barred by limitation?"

(3.) I have heard Mr. B.K. Goswami, learned counsel for appellant and none appears for the respondents.