HARI RAVJI CHIPLUNKAR Vs. SHAPURJI HORMUSJI

JUDGEMENT

(1.) THIS is an appeal from a decision of the High Court of Bombay confirming a decree of the Subordinate Judge, who held that the suit was barred by the operation of Section 11 of Act XXIII. of 1861.

(2.) THE suit was in form to redeem a mortgage, and the facts out of which it arose were that on the 25th of May, 1806, two persons, named Narsoji and Nagoji, mortgaged to two others, named Bhavdnji and Zdnoji, a quantity of land described as three rukas, each ruka containing about six acres, to secure an advance then made to the former. In fact Narsoji and Nagoji were themselves the mortgagees of the land from persons described in the proceedings as the Mahars; but that is not material now, because their title under the Mahars does not come into question, and for the purposes of this suit they may be treated as the owners of the land. A further advance was made in 1807 to Narsoji of Rs. 500, the result being that the mortgage by Narsoji for the debt due by him exceeded the amount of the mortgage for which Nagoji's share was liable. In November, 1823, a suit was brought by Bhavdnji and Zdnoji against the heirs of the mortgagors, and a decree was made in that suit which it is necessary to notice particularly. The decree, which is dated the 8th of September, 1825, set out the mortgage of 1806, and the accounts which had been taken, the suit being brought to enforce the mortgage, and ordered the Defendants to pay in all Rs. 2396 4a. 9p. to the Plaintiffs - treating the mortgage as a joint mortgage, and the whole sum as being due by both mortgagors - by the date fixed, and they were to redeem their Maharki field which they had mortgaged to the Plaintiffs. Then it says: - "Until the Defendants clear off the money the Plaintiffs should use and enjoy the field according to [the terms of] the agreement. On the day on which the Defendants will pay the money, the Plaintiffs should compute the interest on rupees, two thousand three hundred and ninety-six and a quarter, at the rate of one per cent, [per mensem] from the date [that will be] fixed; should deduct therefrom the amount of produce (sic) the fixed date onwards; should receive the remaining amount, together with the interest, and should restore the field to the Defendants." Although this decree speaks about a date which will be fixed, no date was fixed by it, and the operation of the decree appears to have been that an account having been taken of what was due on the mortgage, the mortgagors might at any time make a tender of the amount due, with the interest up to that time, and require that the land should be restored to them.

(3.) THE plaint in the present suit, which was filed on the 13th of September, 1877, begins by stating that the claim is a claim for redeeming from mortgage the under-mentioned land. It states the mortgage of 1806, and then sets out the proceedings in the suit in 1823, and the decree which was made in 1825, and after that it says: "The cause of action accrued when in the decree mentioned above in the third paragraph the previous transaction 'merged,' [and] an order was made 'on the new basis' as to the way in which the mortgagees should carry on the management, &c.; that is to say, [it accrued] on the 8th of September, 1825." Then it proceeds to state that there were certain acknowledgments in writing of the mortgage made by the mortgagee.