AMMANIBAI Vs. ANANT NARAYAN SHANBHOG

JUDGEMENT

(1.) This was a suit brought by the plaintiff to recover Rs. 300 on the ground that the money was recovered from her in execution by her husband's creditor in contravention of the agreement made by defendant 1 with the plaintiff's husband.

(2.) The plaintiff's husband had passed a promissory note on 30 July 1910, in favor of one Kencha. On 14 August 1912 he sold his property to defendant 1 who agreed to pay Rs. 121- 10-4 due to Kencha, the creditor of the vendor, Defendant 1 did not pay the amount as agreed and Kencha sued the plaintiff's husband and defendant 1 on the promissory note and obtained a decree against the plaintiff's husband in January 1916. The present suit was brought by the plaintiff on 22 August, 1924. The amount was recovered by Kencha from the plaintiff in execution of his decree on 31 August 1921. The point arising in the case is whether the plaintiff's suit is barred by limitation. The learned Subordinate Judge held that the suit was within time. The learned District Judge came to the contrary conclusion.

(3.) It is urged on behalf of the appellant that the plaintiff's suit is to recover the unpaid purchase money as a charge on. The property and to recover it by sale, and therefore Article 132, Lira. Act, applies. The vendor has a charge Under Section 55, Sub-section 4(b), T.P. Act, and this charge is not lost by a direction to the vendee to pay the debt. In Sivasubramania Ayyar V/s. Subramania Ayyar [19l6] 39 Mad. 997 it was held that a contract to forego the vendor's charge for unpaid purchase money is not to be necessarily inferred when the whole or part of the consideration of the purchase of immovable property is to be paid by the purchaser to a third party on behalf of the vendor. The question however arises when the cause of action for the purposes of Art. 132 arose. The saledeed was passed and the sale was complete on 14 August 1912, and under Art. 132 limitation would begin to run from the date of the sale dead. Under Art. 111, Lim. Act, for a suit by a vendor of immovable property for personal payment of unpaid purchase money, the time begins to run from the time fixed for completing the sale. I think therefore that, if Art. 132 were held applicable to the present suit, the claim would be barred by limitation as the suit is not brought within twelve years from the date of the saledeed.