PERIYA AKKANDI CHETTY Vs. RETHINAGIRI CHETTY

JUDGEMENT

(1.) The question involved in this second appeal is whether Section 13 of the Indian Limitation Act saves the suit from being barred against the appellant who was the third defendant in the trial Court. The suit was upon a mortgage executed by the first defendant in favour of the plaintiff on the 22nd April, 1916. The executant left British India in 1920, and returned a few days before the suit. After his return, the present suit was filed impleading the mortgagor and the appellant who was the purchaser of portions of the mortgaged property from the 1st defendant. The 1 defendant sold some properties to the appellant and some others to the third respondent who was the fourth defendant in the suit and then left for Penang in the year 1920. There was some doubt whether before he left India, the first defendant had disposed of all his properties. It has now been made clear by the production of the registration copy of a sale deed which though referred to in the written statements was not actually exhibited in the tower Court. It is said in the written statement that the first defendant had sold all the properties before he left India. There Was also some evidence even on the plaintiff's side to this effect. But I wanted to satisfy myself whether it was really so. Sale deeds were filed and exhibited with respect to two of the three mortgaged properties. As regards the other I directed the original or a registration copy of the sale deed to be produced. That was done and I marked it as Court Exhibit I. The question has now to be decided on these facts.

(2.) The first defendant, the mortgagor, sold all the properties, some to the appellant and some to the third respondent.. He had no interest whatever in the mortgaged properties but he was still liable under a personal covenant. He left India in 1920 and returned in July, 1941. The suit was filed on the 5 August, 1941. All this time, the third and fourth defendants have been residing in India. The appellant's contention is that the suit is not saved against him and that Section 13 of the Limitation Act on which reliance is placed helps the plaintiff only so far as the absentee defendant is concerned. Both the lower Courts repelled this contention and decreed the suit. The relevant portion of Section 13 runs thus: In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India shall be excluded.

(3.) The appellant was throughout in British India and the argument is that the expression "time during which the defendant has been absent from British India indicates that the sujt, is saved only against him. Reliance is placed on a decision of this Court in Pahmdppa Chettiar v. Veerappa Ckettiar (1917) 34 M.L.J. 41 : I.L.R. 41 Mad. 446, where it was held that where one of several partners was away outside British India but the others resided in British India and the suit was filed against all after the return of the absentee the suit was barred against those who were all along in British India. The learped Judges postulated the question thus: One is whether the plaintiff is entitled to claim a reduction of time as against all the defendants by the fact that one of them was absent from British India.