BOHRA HOTI LAL Vs. MITHU LAL

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for sale on the basis of a mortgage-deed dated 11 December 1918. The mortgage was executed by Mithu Lal defendant 1 in favour of one Lachhmi Chand and was for a sum of Rs. 1,500. The agreed interest was at the rate of 10 annas per cent per mensem com- poundable with six-monthly rests. The debt was payable on the expiry of one year from the date of the execution of the mortgage-deed. But it was stipulated in the deed that: in the case of breach of covenant...and non-payment of a part or whole of the principal, interest and compound interest (the creditor) shall have the right to recover the amount due to him by filing a suit in Court....

(2.) It is common ground that default was made in the payment of interest on the expiry of six months from the date of bond and that no portion of the mortgage debt was paid up to the date of t he suit. Hoti Lai, plaintiff T appellant, filed the suit on 10 December 1931, that is, within 12 years from the date of the expiry of one year from the date of the execution of the mortgage-deed. Hoti Lai alleged that in a partition between him and Lachhmi Chand the mortgage-deed in suit was allotted to his share and as such he was entitled to maintain the suit. The defendants to the suit were Mithu Lal and certain other persons alleged to be subsequent transferees of the mortgaged property. Bohra Lachhmi Chand, the original mortgagee, was also arrayed as a pro forma defendant Kishan Lal, who was arrayed as defendant 5 was exempted during the pendency of the suit in the trial Court and we are not concerned with him in the present appeal.

(3.) The suit was contested by Chatri Lal, defendant 2, on a variety of grounds. He contended inter alia that the suit was barred by limitation. The trial Court recorded findings on all the issues framed by him, but dismissed the suit on the ground that it was time-barred. The plaintiff filed an appeal in the lower appellate Court and in the memorandum of appeal assailed the findings of the trial Court on the question of limitation as well as on other points that that Court had decided against him. The lower appellate Court agreed with the trial Court in holding that the suit was barred by limitation and accordingly dismissed the appeal filed by the, plaintiff. The lower appellate Court did not record any findings on the other questions raised in the memorandum of appeal. The plaintiff has come up in appeal to this Court and it is contended on his behalf that the view on the question of limitation taken by the Courts below is erroneous. In our judgment this contention is unanswerable and must prevail.