CHANDRA KUMAR DHAR Vs. RAM DIN POODAR

JUDGEMENT

(1.) This appeal arises out of an application for the execution of a mortgage-decree passed on the 19th of December 1901 and made absolute for sale on the 4th September 1906. This first application for execution was made on the 13th of December 1906, for a sum of Rs. 231 odd annas taking the interest as Rs. 12 only, whereas it was in reality Rs. 661 plus Rs. 12. On the 7th of March 1907, the appellant, defendant No. 4, who was one of the purchasers of the mortgaged properties (from the mortgagor defendant No. 1), made an application that the decree-holder had claimed Rs. 231 and annas 15 including coats; that this amount could be realized by the sale of property-No. 11 alone, and, in any case, that he was prepared to deposit any part of the claim not satisfied by the sale, or the whole of the claim. On the 9th March, the decree-holder, who was under the impression that his claim of Rs. 231 was in accordance with the decree as passed and that the decree must be amended, withdrew the application for execution. Ho found out, however, that no amendment was necessary, and that he had made a mistake, and he again applied for execution on the 24th January 1910 for Rs. 345 including Hs. 661 for interest which he had omitted to claim in his previous application. One of the judgment debtors objected that the application was barred by limitation, but the decree-holders contended that the application of defendant No. 4, dated 7th March 1907, contained an acknowledgment of liability and saved the application from the bar of limitation. The first Court held that the application was barred except against defendant No. 4 and allowed execution to proceed against him. The lower Appellate Court, has upheld that decision and hence (his second appeal by defendant No. 4.

(2.) It in contended by the learned Vakil for the appellant,- (1) that the acknowledgment being made by one of several judgment-debtors in respect of a joint decree, it is of no avail to the decree-holder and the whole decree is barred; and (2) that the acknowledgment is only in respect of the amount claimed, namely, Rupees 231 and annas 15, and cannot be extended to the Rs. 661 interest which was not claimed.

(3.) Reliance has been placed by the learned Vakil for the appellant upon the case of Richardson v. Younge 6 Ch. 478 : 40 L.J. Ch. 338 : 25 L.T. 230 : 19 W.R. 612 and two Indian oases based upon the same Bhogilal v. Amritlal 17 B. 173; Dharma v. Balmakund 18 A. 458. As regards Richardson v. Younge 6 Ch. 478 : 40 L.J. Ch. 338 : 25 L.T. 230 : 19 W.R. 612 it is sufficient to say that it has no application io the present case. It was the case of an acknowledgment by one of two trustees who were mortgagees as such, and had, therefore, no several and apportionable interests in the mortgage. Sir Or. Hellish, L.J., said in reference to the acknowledging mortgagee, "he was simply joint tenant with his co-trustee of the land, and jointly entitled with him to the mortgage-money. Had the mortgagees not been trustees, the case would have stood very differently, for they must almost of necessity have been entitled to some distinct interests in the mortgage-money." Sir W.M. James, L.J., said: "our decision is confined to the case of mortgagees who are trustees and are shown to be such on the face of the deed." The case of Bhogilal v. Amritlal 17 B. 173 was decided upon the wording of Article 148 of the second Schedule to Act IX of 1871, which required an acknowledgment by the mortgagee or some person claiming under him and it was held that as the Act did not provide for an acknowledgment by an agent of the mortgagee, an acknowledgment by one of the heirs of the mortgagee would not suffice although he may have acted as the agent of his co-heirs. Section 20 of the Act had no application as it was not an acknowledgment in respect of a debt or legacy but in respect of the right of the mortgagor to redeem. It is true Jardine, J., referred to Richardson v. Younge 6 Ch. 478 : 40 L.J. Ch. 338 : 25 L.T. 230 : 19 W.R. 612 and to the opinion of Mr. Coot, who referred to that case as an authority for the general proposition that "where there is a mortgage to two jointly there must be an acknowledgment by both," but we have shown that the facts of Richardson v. Younge 6 Ch. 478 : 40 L.J. Ch. 338 : 25 L.T. 230 : 19 W.R. 612 do not support that general proposition and that the judgments of the Lords Justices are quite plain as to the distinction. The Allahabad case, Dharma v. Balmukund 18 A. 458 followed the Bombay case and was based on the wording of Sub-section 15 of Section 1 of Act XIV of 1859, which was similar to the wording of Article 148 of the second Schedule to Act IX of 1871. Mr. Justice Banerji, who tried the case as a single Judge, said. The mortgage was made in favour of two mortgagees jointly and it was not a mortgage in which the interests of each mortgagee could be apportioned so as to allow of the mortgage being redeemed piece- meal," The report, however, does not disclose the nature of the mortgage and, in any case, the wording of the Act of 1859 must have regulated the particular decision.