LASA DIN Vs. MT GULAB KUNWAR

JUDGEMENT

(1.) The only question in this appeal is as to the date upon which the principal money became due under a mortgage of certain immovable property in the Lucknow District. Upon this hangs an important question of limitation and the issue of the appeal. The mortgage is dated 26 July 1912, and purports to be for six years from that date. Apart therefore from the provisions of a particular clause in the deed, to be presently referred to the mortgage money would have become due on 26 July 1918, and under Art. 132. Sch. 1, Lim. Act, 1908, the mortgagee would have a further 12 years in which to bring his suit. The article runs as follows. Description of suit. Period of limitation. Time from which period begins to run. 132.-To enforce payment of money charged upon immovable property. Twelve years ... Where the money sued for becomes due.

(2.) The appellant is the mortgagee. He brought a suit praying for a mortgage decree in the usual form on 28 February 1928, i.e., within 12 years from 26 July 1918. He joined as defendants the widow of the mortgagor, who was then dead, and certain puisne encumbrancers, who alone defended the suit. They are respondents to this appeal, but have not been represented before the Board. The main defence was limitation.The Subordinate Judge of Lucknow, in whose Court the suit was instituted, held that it was out of time, and this decision was affirmed on appeal, first by the District Judge and then by the Chief Court of Oudh. The appellant comes before the Board upon special leave. Other issues raised at the hearing of the suit in the Court of the Subordinate Judge have not been tried. By the mortgage deed the mortgagor covenanted to pay interest yearly at 12 per cent., and that if the interest for any year was not paid, it should be added to the principal and carry interest at the same rate. Then followed the clause upon which the defence was founded: "In case of default, the said creditor shall, at all times, within and after the expiry of the stipulated period of six years aforesaid, have the power to realize the entire mortgage money and the remaining interest and compound interest due to him, in a lump sum, through Court, by attachment and sale of the said mortgaged share as well as from my person and all other kind of my property, both moveable and immovable, together with costs of Court, and I my heirs, relations and representatives shall have no occasion for objection and refusal; that the aforesaid rate of interest, fixed by me, shall stand within and after the stipulated period and after the decree till payment of the entire demand here-under and that I shall at no time demand reduction in interest."

(3.) The mortgagor defaulted in the payment of interest for the first year and it was contended for the defendants that immediately upon this default the principal moneys became due within the meaning of the article of the Limitation Act set out above, and consequently that the statutory period of 12 years had expired before the institution of the suit. The question their Lordships have to determine is whether this view, upon which the judgments under appeal are all based is correct.