DHANNALAL Vs. BANSIDHAR

JUDGEMENT

(1.) THIS is a second appeal by the defendant in a suit for sale in enforcement of a mortgage. The facts are not disputed. Chhitar Lal, father of the appellant, executed a mortgage deed on 25th August, 1928, in favour of Ram Nath, father of the respondents, for securing a loan of Rs. 175/-, and mortgaged one obra mentioned in the document, and stipulated to pay the mortgage money by instalment of Rs. 25/- a year beginning from Phalgun Sudi Punam, Smt. 1985 (25th March. 1929 ). There was astipulation that in default of payment of two instalments, the mortgagee would have a right to sue for the entire mortgage money. It appears that possession over the Obra was not delivered to the mortgagee and the first two instalments falling due on 25th March, 1929, and 14th March, 1930, were not paid. Thereafter on various dates certain amounts were paid, and the mortgagee instituted a suit for Rs. 84/10/3 by sale of the mortgage property. The suit was instituted on 10th July, 1944. The defendant took various pleas, but the suit for sale was decreed by the trial court, and the same judgment was upheld on appeal.

(2.) LEARNED counsel for the appellant only canvassed the plea of limitation. It was contended, in the first place, that the possession not having been delivered, the cause of action arose on the 25th of August, 1928, and, therefore the suit, which was brought on 10th July, 1941, was barred by limitation, the correct Article applicable being Art. 132 of the Limitation Act. It was contended in the alternative that there being default in the payment of two instalments on 14th March, 1930, the suit could only be brought under Art. 132 within 12 years from that date.