JAMADAR SINGH Vs. SHEIKH NAIYAB ALI

JUDGEMENT

(1.) The plaintiff instituted this suit against defendant l- on a mortgage. Defendants 2 and 3 had prior to the institution of the suit obtained a decree against defendant 1 and in execution thereof had put the mortgaged property to sale. Defendant 3 purchased the property at the sale. He resists the plaintiff's suit on the ground that the mortgage is invalid as it was effected without consideration and for the purpose of defeating and delaying creditors. The learned Munsif held that the plaintiff had not paid consideration for the mortgage and that the transaction was a fraudulent one entered into by defendant 1 and the plaintiff with the object of defeating and delaying the creditors of the former. On these grounds he dismissed the suit. On appeal the learned subordinate Judge held that part of the consideration for the mortgage was real and gave the plaintiff a mortgage decree with respect to that part. Defendant 3 appeals and raises the following points: First, he says that the appeal to the lower appellate Court was barred by limitation. The decree was signed on 13 March 1937 and the appeal was filed on 26 April 1937. Application was made for copies of the judgment and decree on 18 March 1937 and the plaintiff was notified about the requisite number of folios and stamps on the same date. Stamps and folios as required were supplied on 19 March 1937 and 25 March 1937 was the date fixed for delivery of the copies. On that date the plaintiff came to know that further stamps and folios would be required. 26 March to 29 March were holidays. On 30 March the plaintiff supplied the additional stamps and folios and on 31 March the copies were delivered. If this period between 18 March to 31 March be one which can be described as being a period requisite for taking out copies then admittedly the appeal is within time. It is pointed out on behalf of the appellant that on 20 March 1937 the copying department notified that further stamps and folios would be required and that the plaintiff should have supplied the requisites on 22 March, which was the next day on which the Courts were open, 2l March, being a holiday. The requisites were not filed as has already been stated till 30 March. It is contended on behalf of the appellant that the period between 22 March, and 30 March should not be considered as time "requisite for obtaining copies" within the meaning of S.12, Sub-section (2), Limitation Act, and that if this period is excluded the appeal will be out of time. The point for decision therefore is whether the plaintiff can be given the benefit of this period.

(2.) The word " requisite " has been interpreted by the Privy Council. It has a meaning which is stronger than the word "required." It means properly required and it throws upon the lawyer for the plaintiff the necessity of showing that no part of the delay beyond the prescribed period is due to his default: Jiphoy N. Suity V/s. T.S. Chettyar Firm ( 28) 15 AIR 1928 PC 103.Can it be said that the delay between 22 March, 1937, when it is contended the requisites should have been filed and 30 March 1937 when the requisites were actually filed was due to the default of the plaintiff? I think it cannot. It is true that on 20 March 1937 the copying department notified that further folios and stamps would be required. This fact was not notified directly to the plaintiff or his lawyer but it was notified in the manner provided by Rule 626 and Rule 636 of the High Court Rules and Circular Orders, that is to say, an entry was made in the prescribed register which was kept in the court offices at a place convenient for public inspection. It is true that this is the only mode of publication prescribed by the rules of this Court. But there is a peculiar circumstance in this case which cannot be ignored. When the plaintiff was told on 18 March 1937 what stamps and folios were required he was also told that the copies would be ready on 25 March 1937. As he was expressly told that the copies would be ready on 25 March 1937 there was no further duty on him or his lawyer to go to the Court on intervening days to ascertain from the register whether further stamps or folios were necessary. In circumstances like these an entry in the register on an intervening date to the effect that more folios and stamps were required would not amount to a notice to the plaintiff. The Court by its previous intimation to the plaintiff that the copies would be ready for delivery on 25 March 1937 relieved the plaintiff of the duty of making any further inquiry before 25 March, hold therefore that the whole period from 18 March 1937 to 31 March 1937 was requisite for obtaining copies and that the appeal before the learned Judge was not barred by limitation.

(3.) The next point argued was that the learned Judge in the Court of appeal below was wrong in admitting evidence at the appellate stage and that if this evidence be excluded there was nothing before the Judge which would justify him in reversing the findings of the learned Munsif that there was no consideration for the mortgage and that that transaction was gone through for the purpose of defeating creditors. There is substance in this argument. The consideration for the mortgage according to the plaintiff is Rs. 400. This sum is made up of two sums. Rs. 200 was advanced in cash on the date of the mortgage. The balance consisted of antecedent debts. Rs. 60 had been advanced to defendant 1 about 10 years prior to the mortgage; this sum together with interest due thereon and a further loan of Rs. 12 amounted to Rs. 200. The learned Munsif disbelieved the plaintiff's ease both as regards the advance on the date of the mortgage and also as regards the antecedent debts. In the appellate Court, the plaintiff's pleader produced a bond to prove the advance of Rs. 60 and prayed that it should be admitted in evidence. The Court allowed the prayer and the bond was proved by two witnesses who also proved endorsement of payments of interest thereon. The learned Judge accepting this evidence has held that the plaintiff has been able to prove that on the date of the mortgage the defendant owed the plaintiff Rs. 200 on the antecedent transactions.