ALAGAPPA CHETTIAR Vs. SUBRAMANIA PANDIA THEVAR

JUDGEMENT

(1.) IN this case the defendants Nos. 1 and 2 executed a mortgage in favor of the 3rd defendant for Rs. 26000. Part of the consideration was made up of Rs. 10,920 to be paid by the mortgagee to the assignors of the present plaintiff on two bonds. The mortgagee did not pay the Rs. 10 920, but nearly two years later paid the interest due on the plaint up to that date and made no further payment on the plaint bond. The words of the mortgage are, "The sum received by us in the matter of our having given you permission to pay off the said bond and obtain the return of the same is Rs. 10,920". The Subordinate Judge was of opinion that the mortgagee was not an agent authoirzed to make any payment for the mortgagors because in his opinion it was optional for him to do so. Even if it was optional and not obligatory, still he could none the less be authorised to pay. The question, however, arises whether nearly two years after the date of the mortgage he was authorised to pay, the interest on the bond up to that date so as to keep alive the mortgagors, liability to their creditor. We think that though the mortgagee had authority to pay off the debt in full he had no authority to make a pure payment of interest as such so as to bring the case within Section 20 of the INdian Limitation Act, We think that in this case, as in Lidsall v. Bonser 2 Bing. N.C. 241 the agent exceeded his authority.

(2.) THE appeal is dismissed with costs.