RAGHUNATH ABAJI WAGHODKAR Vs. LAHANU VITHOBA SUTAR

JUDGEMENT

(1.) This was a suit brought by the plaintiff to recover Bs. 596-7-3 paid for redemption of the mortgage on the house belonging to the defendant.

(2.) In 1909, the defendant mortgaged his house to one Devidas. In 1913 he passed a sale- deed to the present plaintiff. In 1915 Devidas obtained a decree on his mortgage against the present plaintiff and the defendant, and on July 15, 1918, the plaintiff paid the amount of Rs. 422-13-3 to the mortgagee decree-holder. It appears that before this payment to the mortgagee the plaintiff had brought two suits, No. 342 of 3915 and No. 846 of 1917, against the defendant for possession of the property in suit but they were withdrawn. Subsequent to the payment he brought suit No. 378 of 1919 for possession against the defendant and obtained a decree for possession, but on appeal it was held that there was no consideration for the sale and that the plaintiff wan simply a benamidar. On September 18, 1922, the decree was passed in appeal and the plaintiff's suit was dismissed. The present suit to recover the amount paid to the mortgagee was brought on September 17, 1925.

(3.) The learned Subordinate Judge held that the plaintiff paid the money as alleged by him, and that he could not recover it from the defendant as it was merely a voluntary payment, and that the suit was not within time. When the case came before the lower appellate Court, the learned District Judge held that the payment of the plaintiff was a lawful payment within the meaning of Section 70 of the Indian Contract Act, but the claim of the plaintiff in the present suit was beyond time under Art. 61 of the Indian Limitation Act and did not fall under Art. 97 of the Indian Limitation Act.