MEGH RAJ VAISH Vs. ABDULLAH KHAN

JUDGEMENT

(1.) This suit arose under the following circumstances. On June 20th 1901, the present plaintiffs sold certain property to Kalli Mal for a sum of Rs. 800. Of this amount Rs. 150 were left to pay Megh Raj and Karia Mal on account of a decree which they had obtained against the vendors. A sum of Rs. 300 was also left with the vendees to pay the said persons on account of a mortgage under which those persons were in possession of the property sold. Kalli Mal did not pay this amount and Karia Mal and Megh Raj took out execution of their decree. The plaintiff- vendors on July 25th, 1904, paid up, those amounts by executing a mortgage of some other property in favour of Karia Mal and Megh Raj, part of the consideration of which was the amount which Kalli Mal was required to pay under the terms of the sale to those persons. Later on, on May 14th, 1909, Karia Mal and Megh Raj purchased from Kalli Mal the property which has been purchased by him on June 20th, 1901. The plaintiff now brings a suit to recover unpaid purchase-money which the vendee was bound to pay to Karia Mal and Megh Raj in accordance with the understanding arrived at, at the time of the sale. The plaintiffs claim to recover their money under a charge against the property in the hands of Karia Mal and Megh Raj who are assignees of the property from Kalli Mal. The defence to the suit is that the claim is time-barred, that there was no vendor s lien in favour of the plaintiffs who in the sale-deed expressly stated that the purchase-money had been paid up and that they had no claim therefor. It was further pleaded that the claim against Karia Mal and Megh Raj was time-barred because the vendors had allowed the claim against the person of Kalli Mal to become time-barred and it was finally contended that the charge created by Section 55 (4) (6) was a charge enforceable only against the buyer and not against the buyer s transferees. It was said that Megh Raj and Karia Mal had, purchased the property: without notice of the charge claimed by the plaintiffs and in any case the charge is not enforceable against them. Before dealing with the other points arising in the case I may at. once dispose of the last point. It has been found by both the Courts below that the defendants-appellants had full notice of the charge that at the time of the sale the original sale-deed of June 20th, 1901, was, handed over to them and that they were in a position to know exactly whether or not the charge existed. The last contention, therefore, fails on this finding.

(2.) I now take up the other contentions urged on behalf of the appellants by Dr. Sen. It is, true that the claim against the person of, the original vendee has become time-barred under Article 111 of Schedule I of the Limitation Act. So far as this Court is concerned the point has been settled by a decision of the Full Bench of this Court in the case of Munir-un-nissa v. Akbar Khan 30 A. 172 : A.W.N. (1908) 71 : 3 M.L.T. 374 : 5 A.L.J. 243. The question still remains whether by. reason of the claim against the original vendees personally being time-barred, the claim for enforcement of the charge should, therefore, fail. This point, in my opinion, is equally governed by the ruling of the Full Bench. The plaintiffs were entitled to recover the amount due to them on account of unpaid purchase-money as a debt due from, the vendee. They had two remedies given to them by law. One of these was to enforce payment of the said sum against such persons personally, and the other by enforcement of the charge. This happens constantly in mortgage cases. The personal remedy is barred by lapse of time, but the debt is thereby not extinguished. It is still a subsisting debt. Though the creditor has lost one of the remedies for recovering it, the other remedy is still available to him.

(3.) In the case of Ram Din v. Kalka Prasad 7 A. 502 : 12 I.A. 12 : 4 Sar. P.C.J. 619 their Lordships of. the Privy Council had to consider a similar point. At page 505 they observe as follows There are two remedies distinctly sought-in the plaintiff s petition, the one against the mortgaged property, the other against the person and against the other property of the defendant. As to the mortgaged property there is now no question. Their Lordships are of opinion that the law of limitation, which says a bond for money must be enforced within a certain date, applies to the specific demand here for a personal remedy against the defendant. The plaintiff can have no personal remedy--his remedy against the person of the mortgagor is barred, but his right remains to enforce his demand against the mortgaged, property." In view of the decision of the Privy Council and of the Full Bench of this Court, I think the contention of the learned Vakil for the appellants is untenable.