FAKIRCHAND JANKIRAM Vs. NARMADABAL

JUDGEMENT

(1.) The question which calls for determination in the present appeal is whether a statement made by the appellant in an application which he made for permission to bid at an auction sale of certain property is an acknowledgment of liability sufficient under the provisions of Section 19 of the Indian Limitation Act to save limitation in respect of an application for execution of a decree for sale which had been obtained by the mortgagee of the property. The decree had been obtained long before the date of the application which was made by the appellant, and the decree in the execution of which the appellant sought permission to bid was a decree for money which he was seeking to execute against the mortgagor. In the application the appellant stated that there was an encumbrance of Rs. 1,011-7-9 of the mortgagee on the property and he went on to say that he would purchase the property if allowed to bid subject to the mortgage. The date of this application is admittedly such as would save limitation in case it could be said that the statement in it amounts to an acknowledgment of liability within the meaning of those words as used in Section 19 of the Indian Limitation Act.

(2.) The words must necessarily amount to what may be called an existing liability as opposed to a past liability; but on this point there can be no doubt at all. The appellant states in his application that there was an encumbrance upon the property and he agreed to purchase it subject to the mortgage if he was permitted to bid; If the mortgage was not existing at the date of the application, the appellant would not say that he would purchase the property subject to the mortgage. There was therefore a statement in the application which the appellant made that the mortgage was existing at the date of the application. It was not existing strictly as a mortgage for it had merged in the decree which the mortgagee had obtained upon it for sale, but that is not a very important matter. The point is that the encumbrance was still upon the property and the appellant had so stated in his application.

(3.) It is contended, however, on behalf of the appellant that even so there was no acknowledgment of liability, because at the time when the appellant made the application he had no interest in the property. The personal liability to pay the mortgage amount, if any, was of the mortgagor and was not of the appellant nor did the appellant by his application undertake the personal liability of the mortgagor. It is pointed out that consequently at the time when the application was made there was no liability whatsoever upon the appellant, and it is contended that there cannot be an acknowledgment of liability when a third person makes a statement saying that there is a mortgage upon the property and that even though a decree has been obtained upon the mortgage the decretal amount still remains unpaid. It is urged that such a statement by a third person cannot possibly amount to an acknowledgment of liability because the words presuppose that the statement must make out that the maker or his property was in some way or other liable. It is conceded indeed that it was not necessary that the statement should show that the maker was personally liable; for example in the case of a charge if before the last date on which a suit can be filed to enforce the charge, the person who had given the charge was to make a statement that the amount of the charge still remained unpaid but coupled it with an assertion that he was not personally liable to pay it, the statement would still be an acknowledgment of liability in respect of the right which was claimed by the charge-holder which would be the right to bring the property given in charge to sale in enforcement of the charge, But the contention of the appellant is that not only was the appellant not personally liable at the date when he made the statement to pay the amount of the mortgage but also he had no interest in the property which the mortgagee was entitled to bring to sale under the terms of the decree obtained by him.