JADAB CHANDRA BHATTACHARJEE Vs. MAFIJUDDI

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the learned Subordinate Judge of Jessore, dated the 28th February 1916, reversing the decision of the Munsif at Narail. The suit was brought to enforce a mortgage security The only question that has been raised in this appeal is a question with regard to the liability of the defendant No. 9 and his property. The defendant No. 9 set up two cases. First of all, he set up the case that he, in consideration of the payment of Rs. 161, had procured from the mortgagee a release of his personal liability in respect of the mortgage money. The answer to that was that the payment could not be proved because the contract between the parties as contained in the mortgage deed provided that a payment on account of the mortgage must be endorsed on the back of the mortgage-bond. But the arrangement that the learned Judge has found to be proved in this case is not an arrangement covered by the terms of the mortgage. It is an arrangement by which the defendant No. 9 procured a release of his own personal liability in respect of the whole of the mortgage money. That is a matter not covered by the terms of the mortgage. On the findings of fact, it is quite clear that the learned Judge correctly held that the defendant No. 9 had been released by the plaintiff from his personal liability with respect to the mortgage.

(2.) The other point was the question of limitation. The defendant No. 9, having stated that he had procured his personal release on payment of the sum of Rs. 161, alleged that the claim of the plaintiff as against the property which remained subject to the mortgage and liable to be sold in satisfaction of the whole mortgage-money was barred by limitation. The learned Judge came to the conclusion that it was so barred. The learned Judge was led into that error owing to the mistake that appears in the plaint. But an examination of the original document and of the date of the institution of the suit show quite clearly that the suit, so far as regards the enforcement of the mortgage against the whole of the property comprised therein, was brought within twelve years from the date when the mortgage money became due. In that view, we must set aside that portion of the decree of the learned Judge of the lower Appellate Court and hold that the interest of the defendant No. 9 in the property comprised in the mortgage is liable to be brought to sale in satisfaction of the whole amount due to the plaintiff on the mortgage just much as that, of the other defendants. Subject to that, the appeal must be dismissed. We make no order as to costs of this appeal. Newbould, J.

(3.) I agree.