MAHAMAD KAMEL Vs. AHMAD ALI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a mortgage-suit. He obtained a preliminary decree against all the defendants except Defendants Nos. 7 to 9 on the 14 November 1914. The period of grace was fixed at one month from that date. Thereafter one of the defendants (19ka) applied on the 12 April 1918 for a re-hearing of the suit under Order 9, Rule 13. On the 10 August 1918 the ex parte decree against defendants (19ka) was set aside and the suit restored so far as he was concerned. The suit against Defendant No. (19ka) was eventually decreed on the 12 March 1919 as he did not appear at the hearing. But before this, on the 6 November 1918, the plaintiff bad applied under Section 115, C.P.C., to have the entire decree set aside against the other defendants also on the ground that the mortgage decree was indivisible, and the same could not be set aside against 19ka alone. This application was rejected. On the 15 April 1919 the plaintiff applied to have the final decree against all the defendants under Order 34, Rule 5, C.P.C. Attempt was made on his behalf to save limitation by alleging that the defendants had paid the plaintiff Rs. 35 in December 1916, The other defendants resisted the plaintiff's application on the ground that it was barred by limitation. Both the Courts below have held that the decree was barred and dismissed the plaintiff's application.

(2.) On appeal to this Court two grounds have been taken before us: (1) that the lower appellate Court should have enquired into the fact of payment of Rs. 35, as alleged by the plaintiff, and reckoned the period of limitation from that date, namely December 1916. On this question the learned Judge has come to a finding of fact which we are not able to question in second appeal. He has found that the payment alleged by the plaintiff, if made towards the principal, is not supported by any acknowledgment in writing according to law; and it is not also alleged that this amount was paid towards interest. The learned vakil for the appellant, however, argues that it is the absolute right of the creditor when payment is made to appropriate it either towards interest or towards the principal; and as the plaintiff has appropriated this amount towards the interest, time ought to run under Section 20, Indian Limitation Act, from the date of such payment. This contention is obviously unsound. Under Section 20, Limitation Act, payment towards interest must be made such" that is, it must expressly be towards interest. It has nothing to do with the general right of the creditor of appropriation of money either towards interest or towards principal. This point accordingly fails.

(3.) The next question argued is that time should have been counted from the date when the decree was finally passed against one of the defendants, namely 19ka. With reference to this question reliance is placed upon the decision of the Judicial Committee in the case of Ashfaq Husain V/s. Gauri Sahai [1911] 33 All. 264. That case on its facts has no application to the present case. Here, the preliminary decree was passed on the 14 November 1914, and if one month's grace is added to it, the 14 December 1914 was the date from which time ought to be reckoned. The application for final decree under Order 34, Rule 5 is governed by the residuary Art. 181 of the Limitation Act. The time for making this application, therefore, expired about the middle of December 1917. The defendant No. 19ka applied for setting aside the ex parte decree against him and re-hearing of the suit on the 12 April 1919, namely after the plaintiff's right to have the final decree passed was barred by lapse of time. On these facts the learned Judge was unquestionably correct in the view he has taken that the subsequent application by defendant No. 19ka did not affect the right of the plaintiff to apply for a final decree as the same was already barred by limitation. This ground also fails.