KIRTI NARAYAN SINGH Vs. SURENDRA MOHAN SINGH

JUDGEMENT

(1.) This appeal arises out of an action on a usufructuary mortgage. The plaintiffs claim was for sale, alternatively for the mortgage moneys. The term of the mortgage was for the years 1314 to 1323 Fs. But it is not denied that shortly after the date on which the mortgagees should have entered into possession they were dispossessed. The argument advanced by the mortgagee plaintiffs who are the appellants before me) is generally speaking, that their rights were created under Section 68, T.P. Act. The only question argued before this Court is the question of limitation, the Court below holding that the action was barred by limitation as the plaintiffs right of action arose in the year 1907 when they were dispossessed.

(2.) The contention of the learned advocate appearing on behalf of the plaintiff- appellants before me is that the plaintiffs had two causes of action: one arose in 1907 which is now barred by limitation, and the other arose in Bhado, 1323 Fs. that is, about 1916, the last date of the period during which the plaintiffs were to be in possession. The contentions in this regard are based on a decision of this Court in Mukhdeo Singh V/s. Harakh Narayan Singh 1931 Pat 285. That was a case involving the question of an instalment bond with a default clause, it being argued on the one hand that the cause of action arose on the debtor making default on the due date of each instalment; and, secondly, that it was within the discretion of the creditor to take advantage or not as he pleased on the default clause, and, if he did not, then limitation ran only from the date at which the various recurring causes of action arose.

(3.) There has been a great discussion in the High Courts regarding this question; in some instances the High Courts following the leading cases in England in which the law has been settled now for very many years one of which was Reeves v. Butcher (1891) 2 QB 509, the other line of cases deciding that a different principle applied and that cause of action arose at the date of each instalment and that the creditor was not bound to elect to take advantage of the penalty clause. These decisions were against the leading decisions of England. The question again came up in the case of Ram Charan Lonia V/s. Bhagwan Das 1926 PC 68, when their Lordships of the Privy Council declined to express a definite view with regard to the matter as the case before them was not an appropriate one for that purpose, ultimately the matter being finally decided in Lasa Din V/s. Gulab Kunwar 1932 PC 207, in favour of the view which was taken in this Court at any rate so far as mortgage bonds were concerned.