SYED ABDUL HUQ SAHIB Vs. RAJ MUHAMMAD KABULI

JUDGEMENT

(1.) The question for decision in this appeal is one of limitation. The appellant is the plaintiff in the suit and the Courts below have held that his action is barred by the law of limitation. We do not share this opinion.

(2.) On the 15 January, 1920, the plaintiff sold certain immovable property to one Mohamed Ghouse for the sum of Rs. 1,750 of which Rs. 1,150 was paid immediately. For the balance of Rs. 600, the purchaser executed a promissory note in favour of the Vendor. On the 16 July, 1920, Mohamed Ghouse mortgaged the property to the Catholic Permanent Fund. The mortgage debt was not repaid and the mortgagee was compelled to file a suit on the mortgage. As the result, a decree was obtained and in execution the property was sold, the respondent being the purchaser. On the 30 December, 1920, 9 January, 1921 and 5th July, 1924, Mohamed Ghouse made payments to account of the amount due on the promissory note which he had executed in favour of his vendor for Rs. 600. It is not disputed that these payments were suitably acknowledged and that each operated to extend the period of limitation.

(3.) In 1927, the appellant instituted a suit against Mohamed Ghouse to recover the sum of Rs. 187-7-0, the balance of the amount due on the promissory note. He obtained a decree, but in execution he was not able to realise anything. Consequently he filed the suit out of which this appeal arises, claiming that as the unpaid vendor he was entitled to a lien on the property by reason of the provisions of Section 55 of the Transfer of Property Act. The suit was brought within twelve years of the last payment towards the amount due on the promissory note. Art. 132 of the Limitation Act prescribes a period of twelve years to enforce payment of money charged upon immovable property, the twelve years commencing to run from the date when the money sued for became due. The District Munsiff and on appeal the District Judge held that as the suit had not been brought within twelve years of the date of sale it was out of time. The appellant filed an appeal from the District Judge's decision to this Court, and Chandrasekhara Ayyar, J., agreed that the suit had been filed out of time, but he gave a certificate which has permitted this appeal being filed under clause 15 of the Letters Patent.