RAM DAWAR RAI Vs. BHIRGU RAI

JUDGEMENT

(1.) On Sawan Sudi Asntami 1237 (28th July 1830), a mortgage by conditional sale was executed by Pabarn Rai and Chittra Bal Rai, predecessors-in-title of the defendants Nos. 1, 2 and 3, in favour of Bachan Rai, predecessor-in-title of the plaintiffs, to secure a sum of Rs. 800. The deed contains a provision to the effect that the mortgagee shall be entitled to possession at the end of 1257 (18th of September 1850) on default of payment of the mortgage-debt on the due date. I may note here that due date in the judgment of the first Court is stated as the 4th of October, 1850 and in that of the lower Appellate Court as the 4th of April 1850.

(2.) No application for foreclosure was ever made under Regulation XVII of 1806, but on 11th of July 1910, a suit for foreclosure was instituted. Limitation was pleaded in defence. The Courts below accepted it and dismissed the suit.

(3.) The contention in second appeal is that the suit is not time-barred. The substance of the argument of the learned Vakil for the appellants is as follows: The mortgage by conditional sale in suit was executed when Regulation XVII of 1806 was in force. Section 8 of that Regulation allowed a mortgagee to apply for foreclosure on the expiration of the stipulated period or at any time subsequent before the sum lent is re-paid and fixed no time within which to apply. With regard to the language of the section, a Full Bench of this Court in Buldeen v. Golab Koonwer N.W.P.H.C. 1867 (F.B.) 102 held that there was no limitation for an application to foreclose under Regulation XVII of 1806. The Limitation Acts of 1859 and 1871 contain no express provisions for foreclosure suits nor was there anything in Section 28 of Act XV of 1877 to extinguish the mortgagee s right to take foreclosure proceedings. Such being the case, the right to foreclose was in existence when Act X V of 1877 came into force and Article 147 of that Act gave to the mortgagee the right to sue for foreclosure 60 years from the dale when the money secured by the conditional sale became due i.e., the 18th of September 1850. The suit, therefore, which was brought on the 11th of July 1910 was, according to the provisions of Section 31 of the present Limitation Act (IX of 1908), not barred by limitation.