MAHABIR PRASHAD Vs. DURBIJAI RAI

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of the amount stated to be due to the plaintiffs on foot of six bonds. The Court of first instance gave the plaintiff a decree in respect of the six bonds. But upon appeal the lower Appellate Court disallowed the claim in respect of two bonds, namely, one of the 17th of July 1882 and the other of the 15th of June 1892. The plaintiffs suit was dismissed as regards these bonds on the ground that it was barred by limitation.

(2.) The provision as regards payment of the debt secured by the first bond of 1882 is as follows: "In all we owe Rs. 82 of the current coin on which we shall pay interest at the rate of Re. 1 per cent per mensem. We shall pay this sum principal and interest, in a lump sum on Phagun Sudi 1290 from the price of sugar cane and molasses. If we fail to pay the money at the stipulated time, then we shall pay it along with the amount of the mortgage deed previously executed in favor of the said creditor. We shall pay this money first and then the amount of the mortgage." The provision in the other bond of 1892 as regards payment is as follows: "We shall pay this sum along with the amount due under a mortgage-deed previously executed by us in favour of the said creditor on the 4th of November 1878. We shall pay this sum principal and interest in a lump sum first and then the amount of the mortgage." The earlier mortgage referred to in these bonds was a usufructuary mortgage of the 4th of November 1878. The mortgagor instituted a suit for redemption of this mortgage and a decree for redemption was passed on the 6th of September 1907. The redemption of this mortgage without payment of the two subsequent mortgages of 1882 and 1892 was clearly a breach of the obligation undertaken by the mortgagors in those bonds. They agreed to pay the amount due under the later mortgages along with the amount due under the earlier mortgage and failed to do so.

(3.) The suit out of which this appeal has arisen was instituted on the 7th of July 1909, that is, well within three years after the redemption of the earlier mortgage. The Court of first instance, as we have said, held that the plaintiffs claim was not barred by limitation but upon appeal his decision was reversed and the suit dismissed as regards these two mortgages, on the ground that the mortgagors had undertaken to pay the amounts due on foot of the later mortgages respectively before payment of the earlier mortgage and that the suit was barred by limitation. We are unable to agree with the lower Appellate Court as to this. As regards the bond of 1882 the obligation undertaken by the mortgagors was to pay the amount either on Phagun Sudi 15, 1290, or, if it were not convenient for them to do so on that date, to discharge the debt along with the amount due on foot of the earlier mortgage. This, as it appears to us, gave the executants of the bond an option either to pay the debt on the date specified or to pay it along with the sum secured by the earlier mortgage. Having this option there was no breach of the condition in the bond before the date of the suit for redemption of the earlier bond. In redeeming the earlier bond without paying the amount due on this bond of 1882 there was a breach and limitation ran from the date of that breach. As regards the mortgage of 1892 the provision is that the executants would pay the amount due under it along with the amount due under the earlier mortgage. It is true that the bond contains the provision that the amount of this bond should be paid first and then the amount of the mortgage but this provision was merely intended to show that when the money was being paid along with the earlier debt this debt should be wiped out first and then the earlier debt. The language is clear and specific, that both bonds were to be paid at the same time. Therefore, the breach of this bond occurred when the earlier mortgage was redeemed without satisfying this bond. This being so, whatever be the Article of limitation applicable to the case the suit was not barred by limitation.