BABU SANWAL DAS Vs. SAIYAD ALI MAHDI

JUDGEMENT

(1.) This appeal raises two questions: first, whether having regard to the fact that the appellants were made parties to the suit for redemption after the expiry of sixty years from the date of the mortgage, the suit against them was time-barred and secondly whether the statement of the property sought to be sold, dated the 21 June, 1919, signed by. Sanwal Das operated as an acknowledgment under Section 19 of the Limitation Act, and, saved the suit from being time-barred.

(2.) The facts briefly are these: There was an ancient mortgage dated the 16th July. 1859 for Rs. 1,200. The suit to redeem the mortgage was brought on 29th. January-1918. The mortgagees or some of therii made a sub-mortgage of their mortgagee rights with respect to a 7 annas 81/2 pies share on 19 September 1900 in favour of two persons Sanwal Das and Kampta Prasad. The sub-mortgage was a simple one Sanwal Das and Kampta Prasad got a decree for sale against their mortgagors and brought the property to sale and them selves purchased on 20 March 1920. Kampta Prasad has since died. Sanwal Das, his brother Baldeo Das, Kampta Prasad's sons and other members of the family were impleaded in the suit for redemption by order dated the 23 December 1920. These are the parties who are the appellants before this Court. Three of these contested the suit and pleaded limitation among other matters. In answer to this plea of limitation the plea of acknowledgment was taken and it was further urged that the actual sale having taken place pending the suit, the question of limitation does not arise.

(3.) As we have stated, there are two points for decision in the case. Oh the first point it appears to us that the auction purchase by the appellants can be referred only to the simple mortgage they obtained on 19 September 1900. It is not the case that this auction purchase took place under a simple money decree and the right to the property accrued to the appellants for the first time at the date of the sale. They already had an interest in the property by the mortgage, simple though it was, dated the 19 September 1900. We are, therefore, of opinion that the Courts below were not right in holding that the suit was not barred against-the appellants if there happened to be no acknowledgment.