P C MUTHU CHETTIAR Vs. MUTHUSWAMI AIYANGAR

JUDGEMENT

(1.) The question for determination is whether an acknowledgment by the mortgagor in favour of a prior mortgagee precludes a puisne mortgagee, whose title accrued before the acknowledgment was given, from relying upon the Statute of Limitation as a bar. Can a mortgagor alienate the hypotheca and then acknowledge the mortgage debt so as to give a fresh period of limitation as against not only himself but the alienee?

(2.) A plain reading of Section 19, Indian Limitation Act, would suggest that the acknowledgment affects both the mortgagor and his alienee: Where before the expiration of the period prescribed...an acknowledgment of liability...has been made...by some person through whom the party derives title, a fresh period shall be computed.

(3.) In Krishna Chandra Saha V/s. Bhairab Chandra Saha (1905) I.L.R. 32 Cal. 1077 it was held that the mortgagor is the person from whom the alienee derives his title, and the section does not say that the acknowledgment must necessarily be given before the alienation. This opinion is endorsed in Velayudam Pillai V/s. Vaithialingam Pillai (1912) 24 M.L.J. 66 which is affirmed in Lakshmanan Chetty V/s. Muthaya Chetty (1919) 40 M.L.J. 126 at 127.