A RANGASWAMY PILLAI Vs. CRPKUPPUSWAMY DEEKSHATAR

JUDGEMENT

(1.) This appeal is preferred by defendant 4 in a mortgage suit brought to enforce the mortgage security for the recovery of: the amount due to the plaintiff as assignee of the mortgage from the mortgagees. The mortgage bond is dated 22 January, 1908 and it was for the sum of Rs. 6,000. The material portion of the bond to which reference has to be made in connexion with the questions arising in this appeal is as follows: As the total sum of Rs. 6,000 has been received by us as per particulars mentioned above, we shall pay before 22 January, of each year the interest arrived at on the said amount at the rate of 3/4 per cent per mansem and pay the principal sum within a period of five years from this date. In default of payment of interest or principal on such due dates we agree to your adding to the principal sum the interest due each year from the date of default and recovering (the total amount) with interest at the said rate, without regard to the due date for (payment of) principal whenever you require, by proceeding against us and the order mentioned hypotheca.

(2.) The plaintiff's case as alleged in the plaint is that towards the suit mortgage bond, the following payments were made: Rs. 3,347-8-0 on 15 June 1909 towards principal and interest, Rs. 800 on 15 June 1909 towards principal and interest and Rs. 250 on 4th November 1909 towards interest, but the balance of principal and interest was not paid. The mortgagee assigned the mortgage bond in plaintiff's favour for Rs. 7,604 on 25 November 1922. The plaintiff says that a sum of Rs. 8,420-14-0 was due on the mortgage at the date of the suit, and he prays for a decree for the sale of the mortgaged properties to recover the said amount with subsequent interest and costs. The cause of action for the suit is stated to have arisen on 22 January, 1913, i. e., on the expiry of the period of five years provided in the mortgage bond, and the plaint was presented on 30 January 1924. The plaintiff has impleaded as defendants the legal representatives of the mortgagor as well as subsequent alienees of different portions of the mortgaged properties.

(3.) Defendant 4, among other pleas, raised the plea of limitation. In para. 4 of his written statement he says that as the mortgagors failed to pay interest due for the first year the mortgagee made a demand on the mortgagors to pay the entire amount of principal and interest according to the conditions stipulated in the bond and pressed for payment of the same. Thereupon payments towards the principal and interest were made to the mortgagee as admitted in the plaint itself, and the suit is, therefore, barred by limitation, as the cause of action therefore arose in 1909.