KRUTTIVENTI PERRAJU Vs. SABBELLA BAPIREDDI

JUDGEMENT

(1.) This is an appeal from the decree of the Additional Subordinate Judge's Court of Cocanada in O. S. No. 72 of 1919 brought by Mr. Perraju for the enforcement of a mortgage executed in his favour by Defendants Nos. 1 to 12. The suit has been dismissed by the Subordinate Judge on the ground of limitation. The appeal to us is thus by the plaintiff.

(2.) The learned counsel for him contends that the finding on the question of limitation is erroneous. The mortgage deed is dated 1 February 1905. The suit was brought on 20th November 1919; prima facie the suit would be barred as 12 years had expired from the date of the mortgage. But it is claimed that he suit is saved on account of a payment made to the plaintiff on behalf of the mortgagors by certain persons who purchased a part of the mortgaged property and who were directed by the mortgagors to pay the purchase money to the mortgagee, Mr. Perraju. That payment is found by the Subordinate Judge to have been made on 29 November 1907. If the finding is correct, and if this payment could be relied upon under Section 20 of the Limitation Act as saving limitation, the suit would be in time. The learned vakil for the respondents contends that the date of payment is not correctly arrived at. I think, however, that the Subordinate Judge is right in his finding that though the sale deed was dated 23 August 1907 the money was actually paid over to the mortgagee only on 20th November 1907. The receipt, Ex. A, which has been given by the mortgagee, bears that date. Though no doubt the receipt does not say that the money was paid on that day, there is no reason to suppose that it was paid on any other date. There is oral evidence to support the fact that the money was paid on the date of Ex. A. That being so, the Subordinate Judge's finding that the money was paid on 20 November 1907 is correct and I accept it.

(3.) The Subordinate Judge has, however, held that this payment is of no avail for the purpose of saving limitation. The learned counsel for the appellant claims that this payment is sufficient as it is a payment of "interest as such" within the meaning of Section 20. In the mortgage deed there are certain covenants to be considered with reference to this. The mortgage deed, after reciting that Rupees 8,000 had been borrowed, says: We shall on demand pay the said principal sum of Rs. 8,000 with interest thereof at Rupees 1-0-6 per cent. per mensem. We shall pay the interest of each year at the end of that year, that is, on the 1 February of every year. In default of payment of the interest of any year at the end of that year, we shall add the interest of each year with the principal and we shall treat the said total amount as the principal and pay the same in the said manner with interest thereof at the rate of Re. 1-0-6 per cent per mensem till the amount is paid in full. It is arranged that if any payment is made in respect of this, the amount remaining after deducting the interest payable till then shall be credited towards the principal according to the stipulation in this deed.