HORMASJI BEZONJI Vs. HAJRAT YARKHAN

JUDGEMENT

(1.) In this case a preliminary decree was passed in a mortgage suit under which the defendant had to pay Rs. 2,583-8-1 within six months of the decree. The six months expired on March 25, 1918. An application was made on April 4, 1921, to make the decree final. The plaintiff relies, to save limitation, on two payments made by the defendant, the dates of which are not clearly set out in the judgment, but we are told that they were in July 1920, and it is argued that if those could be brought within Sec. 20 of the Indian Limitation. Act, the bar of limitation would be saved.

(2.) The trial Court held that it could be inferred that there was a payment on account of interest as such, because the amount due was made up of principal and interest, and if the debtor paid anything on account of the debt, it could be said that he was paying on account of interest as such. He relied upon the following passage in Rustomji's Law of Limitation, 3 Edn., p. 160: Where money is paid on account of principal and interest, but it is not specified how much is for principal and how much for interest, it is nevertheless a payment of interest as such :...in other words, if there is, in fact, a payment of interest it is immaterial if such payment as interest is mixed up with a part payment of principal.

(3.) But I do not think he has properly appreciated what is said therein.