BALARAM Vs. MANGTA DASS

JUDGEMENT

(1.) This reference raises two very important questions of Hindu law, which, it is no doubt, very desirable that we should decide.

(2.) But at the close of his argument the learned pleader for the defendants, appellants, has raised the question of limitation. He contends that the suit is barred by limitation. The suit is one for foreclosure of a mortgage, by conditional sale. The bond was executed on the 20th January 1887. The due date was the 24 January 1891; and the suit was instituted on the 23 April 1904, that is, after a period of 13 years. Now, according to the ruling of this Court in the case of Girwar Singh V/s. Thakur Narain Singh (1887) I.L.R. 14 Calc. 730, the period of limitation prescribed for a suit of this nature is 12 years, as provided in Art. 132 of the second schedule to the Indian Limitation Act. The suit is, therefore, apparently barred by limitation. There was a contention raised in the first Court that there had been a payment of a certain quantity of rice by the defendants on account of interest. But this alleged payment was found to be unproved; and, moreover, this payment was alleged to have taken place within one year of the date of the bond. There is, therefore, nothing to prevent the application of Art. 132 of the second schedule of the Limitation Act to this suit.

(3.) There is, no doubt, a conflict of rulings between this Court and the Bombay High Court on this point. The Bombay High Court has ruled that Art. 147 of the second schedule to the Limitation Act applies to a suit like the present, in which case no doubt this suit would not be barred by limitation. But we are bound by the Full Bench ruling of this Court, and must hold that the period of limitation is 12 years, and that the suit accordingly is barred. This question of limitation was never raised in either of the Courts below; nor has it been raised in the memorandum of the appeal to this Court. But we have felt ourselves constrained to allow it to be taken, although at a very late stage, in accordance with the provisions of Section 4 of the Limitation Act. The provisions of that section appear to us to be mandatory; and in accordance with them, we are bound to hold that the suit is barred by limitation and to dismiss it accordingly.