S ASKARAM SOWCAR Vs. VENKATASWAMI NAIDU

JUDGEMENT

(1.) THIS is an appeal from an order of the City Civil Judge dismissing an application by the decree-holder for execution against the original mortgagors, defendants 1 and 2, and the 3rd defendant who is the auction purchaser of the interest of the mortgagors. The appeal is only pressed as regards the application against the 3rd defendant, the auction purchaser. He undoubtedly made a payment of Rs. 28-13-0 on the 28th August 1918 for which he obtained a receipt and of this sum Rs. 23-12-0 was due for costs. In order to save limitation this payment must have been made for interest as such and the learned Judge has found that it was not made for interest. No other explanation is given as to why the additional Rs. 5-1-0 was paid and that sum amounts to very nearly three months interest which was the amount of interest due up to the time fixed for payment by the decree, and we think that in the circumstances the natural and proper inference is that the payment was made for interest as such. If that be so, we have a payment by the auction-purchaser, for interest as such. Now, according to the decisions he is a person liable to pay within the meaning of Section 20 of the Limitation Act, and this has been decided in England with reference to the identical langauge of the English statutes. It was decided in the case of Bolding v. Lane (1863) De. G.J. & Section 122 and this propostion was affirmed and explained by Lord West bury in Chinery v. Evans (1864) 11 H.L. 115, 135. It was held in that case that the second mortgagee was the person liable to pay the first mortgagee on the ground that he could only get property by redeeming the first mortgagee and Lord Westbury says " what was decided in Bolding v. Lane (1863) De. G.J. & Section 122 was this : that the words, "the person by whom the same is pay-able, or his agent, " (which are practically identical with the words of our section) " were words of such large import and meaning that they would not only comprehend the mortgagor arid his personal representatives upon whom the contract would be personally binding, but would also include the second or the third mortgagee, by whom the principal and interest due to the first mortgagee might with propriety be said to be payable, inasmuch as the estate and right of the second mortgagee was subject and posterior to that of the first mortgagee, and he would be entitled to redeem the first mortgagee upon the payment of the principal and interest." Now these words of Lord Westbury exactly apply just as much to the case of the auction-purchaser of the mortgagor s interest. We thought it better to go to the fountain-head of authority upon which this proposition rests though no doubt there may be abundant later. cases upon which the decision might be rested. For these reasons the appeal must be allowed and the order set aside and execution directed with costs here and below.