(CADAPALLI) YAGNANARAYANA Vs. KAJA VENKATA KRISHNA RAO

JUDGEMENT

(1.) The defendants Nos. 1 and 2 executed a mortgage bond Exhibit A, on 5th August, 1892 in favour of plaintiff's father, under which several items of property were mortgaged. On 25 August, 1895, one of these items, viz., item No. 6, was sold to the predecessor-in-title of the 7 defendant under Exhibit I, and he sold it to the predecessor-in-title of the 11 defendant under Exhibit II. On 15 August 1905, the mortgage-bond Exhibit A, was renewed by Exhibit B and item No. 6 was again included in the properties charged.

(2.) The present suit was filed on 8 August, 1917. The plaintiff contends that the charge over item No. 6 that he had obtained under Exhibit A was kept alive by Exhibit B and cannot be affected by the intermediate conveyance (under Exhibit I) behind his back without his consent. The appellant concedes this, but argues that the suit is barred by limitation.

(3.) If the only point that has to be decided is whether Exhibit B regarded only as an acknowledgment in 1905 of the debt due under Exhibit A, will save the suit from being barred against defendants Nos. 7 and 11, it must be decided against plaintiff. The observations in Lewirt V/s. Wilson (1886) 11 A.C. 639 are conclusive on the point. At page 645 Lord Hobbouse after citing Bolding V/s. Lane (1863) De. G.J. and Section 122 points out the difference between an acknowledgment under Section 29 of the Statute of New Brunswick (corresponding to Section 19 of the Indian Limitation Act) and a part payment under Section 30 of the same Statute (corresponding to Section 20 of the Limitation Act). A person who was a party to the mortgage contract can make an acknowledgment even after his interest in the properties had ceased, but the acknowledgment binds only him or persons claiming through him, i.e., assignees from him after the acknowledgmentThis is the view taken by Mookerjee. J., in Surgiram Marwari V/s. Berhamdeo Persad (1905) 1 C.L.J. 337.