SAMBASIVA AYYAR Vs. SUBRAMANIA PILLAI

JUDGEMENT

(1.) In this appeal brought by the plaintiff the question for determination is whether the Subordinate Judge was right in upholding the defence of limitation. The relevant facts are as follows:

(2.) The plaintiff-mortgagee sued in O.S. No. 55 of 1919 on a mortgage making the mortgagors and a sub-mortgagee parties. It subsequently transpired that as to two of the properties they had been sold in Court-auction. The mortgagee at time of suit was unaware of this fact. The plaintiff in O.S. No. 55 of 1919 obtained a decree and purchased in Court-action. He derived no advantage because, the earlier purchasers not having been joined, their prior right was still outstanding. He then joined them and sued again. That suit is said to be barred unless the earlier purchasers can be deemed to have acknowledged the mortgage liability within the necessary period. The critical date is June 20th, .1921. There is a document Ex. F which may be sufficient acknowledgment. It is not necessary to consider whether it is or not, because it is long after the critical date having been executed on 30 July 1927. It was chiefly relied upon in argument to show the intention underlying the earlier documents that were relied upon. The learned Sub-Judge was in our opinion right when he said in para. 9 of his judgment: An acknowledgment to be effective must amount to an unequivocal admission of a subsisting debt, i.e., subsisting at the time of the acknowledgment.

(3.) Here the acknowledgment relied upon Is Ex. D coupled with Exs. C and II. It is also sought to couple it with Ex. F. It is our clear opinion however that in construing Ex. D one cannot give words therein a different meaning from their clear intent by looking at a document which came into existence eight years later. There thus remains for consideration Exs. C, D and II. Ex. C is a sale certificate. This certifies that the auction purchaser (defendant) purchased at a sale by public auction the lands. It includes the following expression: The sale has been made subject to the mortgage decree charge on the abovesaid properties and some other properties for Rs. 4,000 created in favour of (plaintiff herein). The term" mortgage decree charge" is admittedly inaccurate.