BHABUTMAL NATHUMAL Vs. SYED ABDUL HAMID SHEOGUTULLA

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit to recover the money due on a mortgage. The mortgage was executed on 5th July 1923 in favour of Nawab Nyajuddin Khan by Bijarat Ali, who is now represented by the defendants. The consideration for the mortgage was Rs. 7000, of which Rs. 5000 represented previous debt and Rs. 2000 future interest. The consideration was repayable by 14 annual instalments of Rs. 500 due on 31st July each year from 1924 onwards. The mortgagor agreed that on default of any two instalments he would pay interest on the outstanding instalments at the rate of Rs. 1 per cent. per mensem and that on default of any three instalments he would pay the entire amount in a lump together with interest on the defaulted instalments. On 2lst October 1926 Nawab Nyajuddin Khan transferred the mortgagee rights to the present plaintiff.

(2.) THE plaintiff instituted his suit on the mortgage on 26th April 1911 alleging that the only repayments were Rs. 625 paid on 2nd July 1926, Rs. 18 on 25th July 1928, and Rs. 155 on 30th June 1930, and that the cause of action arose on 31st July 1927. That amounted to saying that the third default occurred on 3lst July 1927 and that limitation was saved by the alleged payments. The last of these payments was the crucial one, and the lower Courts have held that this payment has not been proved. They therefore dismissed the suit as barred by limitation.

(3.) THE facts in the present case are very similar to those in Pancham v. Ansar Husain A.I.R. (13) 1926 P.C. 85. That was a suit to recover the money due on a mortgage executed on 21st February 1893. The money was repayable on the expiry of 12 years, but the mortgagors agreed that they would pay Rs. 500 annually in respect of principal and interest and that the whole amount should become due on any default. No payments were made, and the suit to recover the money due on the mortgage was brought on 21st February 1917. In the plaint as originally drafted it was stated that the cause of action accrued on 21st February 1905, but the plaintiffs were obliged to amend that plaint, and they then stated that the cause of action accrued on 21st February 1894, They pleaded that limitation wan saved by certain repayments, but failed to prove the alleged repayments. Their Lordships of the Privy Council said that first of all the plaintiffs had abandoned the contention that their cause of action did not accrue until the 21st February 1905, and secondly that they had asserted that the cause of action accrued on 21st February 1894, which involved the assertion that all conditions on their part had been fulfilled, if any had to be fulfilled, and that all things had been done, if any had to be done, to bring about that result, as well as an assertion that that result had been attained. Their Lordships held that in such circumstances the dismissal of the suit was the proper course and said: No other issue was or is, on the pleadings, open to the plaintiffs, and their conduct in this matter is not such as to entitle them to claim any more than strict treatment. On their own chosen issue they fought; to that issue they directed evidence which was not believed: on it, therefore, they failed. And by that failure they must abide, The position in the present case is the same. It is true that there was no original contention here that the cause of action arose in 1937 and no abandonment of that contention, but it does not appear to us that that makes any effective difference. The remarks of their Lordships we have quoted above apply with equal force to the present case, and the suit was therefore rightly dismissed as barred by limitation.