ARJUN RAM PAL Vs. ROHIMA BANU

JUDGEMENT

(1.) This was a suit on the mortgage executed by one Akram on the 20th August 1895. The due date was the 28th November 1895 and the suit was instituted on the 25th November 1907. The plaintiff has obtained a partial decree with which he is dissatisfied and hence this appeal

(2.) The first point taken is, that the Court below is wrong in holding the suit to be barred by limitation against defendants Nos. 6--12. This decision, however, seems to me clearly right. These defendants claim through Akram s daughters and were made parties more than 12 years after the due date. This delay, according to the Court below, was due to the plaintiff s laches. That is a finding that I have no power to disturb in second appeal and is, moreover, perfectly reasonable. If a man waits till the last moment of the long period allowed him before suing on a mortgage, he has no reason to be surprised if he finds that he cannot bring all necessary parties on the record in time. It is argued that limitation is saved by a payment of interest by Akram s widow. But this could not, in my opinion, affect the defendants Nos. 6--12 who do not claim through the widow but through the daughters. No doubt, it has been held, that an acknowledgment by a mortgagor is effectual to save limitation against purchasers from him even if made after the purchase. Bat here, after Akram s death, his widow and daughters were jointly liable to pay the debt, and, having regard to the analogy of Section 21 Sub-section (2) of the Limitation Act, I do not think that a payment by the widow would save limitation against the daughters much less against the purchasers from the daughters. It is argued that the gift by Akram to the daughters was free of encumbrances and that, therefore; the widow must be regarded as the sole person liable to pay the debt. But there is no reason whatever for supposing that the gift to the daughters was free of encumbrances. In this connection, I may refer to the case of Narayana Ayyar v. Venkataramana 25 M. 220. There is a remark in the case of Saroda Charan Chuckerbutty v. Durga Ram Dey Sinha 14 C.W.N. 741 : Ind. Cas. 484 : 37 C. 461 : 11 C.L.J. 484 that may seem at variance with this view, but it seems to have been a casual observation and not the decision of the Court,

(3.) Next, it is argued that even if the suit is barred against the defendants Nos. 6--12 personally, the mortgage can still be enforced against the land. But this view seems to me untenable. I do not see how the plaintiff could possibly get a decree to sell the land in the possession of these defendants in satisfaction of his mortgage when, at the same time, it is held that his suit as against them must be dismissed.