PARAS RAM CHAUBEY Vs. SHEO DHAN PANDEY

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for redemption. Both the Courts below have decreed it but on payment of a much smaller amount than that claimed by the defendants-appellants who are the legal representatives of the original mortgagee Ramyad Ghaube. The plaintiffs are transferees of the original mortgagor Brij Raj Dube. The principal question in controversy between, the parties relates to a deed of further charge for Rs. 100 carrying interest at one- eighth per cent. It is alleged to have been executed by the mortgagor on 22nd September 1874. The possessory mortgage sought to be redeemed was executed much earlier, on 4 August 1868. The defendants-appellants claim a sum of Rs. 1,858-0-9 alleged to be due under the bond of 1574. Both the lower Courts have disallowed this sum and decreed redemption on payment of Rs. 213. It is not now in dispute that under the mortgage of 1868 the defendants-appellants were in possession, of two plots, one of which was allowed to be redeemed on payment of Rs. 86. The lower Courts have therefore allowed redemption of the remaining plot No. 1358 on payment of the remaining sum of Rs. 213 out of Rs. 299 the original consideration of the usufructuary mortgage.

(2.) As regards the bond of 1874, the trial Court held that the mortgagee's remedy for recovery of the sum due thereunder is by barred by limitation, and that there- fore no payment can be claimed as a condition precedent to the redemption of the usufructuary mortgage. The lower appellate Court has disallowed the defendants- appellants claim en the additional ground that it has not been shown that the bond of 1874 relates to the same property which had been mortgaged in 1868.

(3.) The case relied on by the lower appellate Court and which, might have influenced the trial Court is Dambar Singh V/s. Munawar Ali Khan A.I.R. 1915 All. 420, in which the opinion was expressed that a mortgagee cannot insist on payment of the sum due under a tacking bond unless his suit on the basis thereof is in time when the mortgagor's suit for redemption of the possessory mortgage is brought. In later rulings of this Court, e.g., Ram Kishore Ahir V/s. Ram Nandan Ram this view was not approved and it was pointed out that limitation can be pleaded as against! a plaintiff's claim and that no defence can be barred by any article of Schedule 1, Lim. Act. We are clearly of opinion that this is so. The defendants- appellants are certainly entitled to have the sum due under the bond of 1874, if they are otherwise entitled regardless of the question whether their suit on foot of that bond if now brought, would be barred by limitation.