DHONDI SHIVAJI RAJIVADE Vs. LAKSHMAN MHASKUJI KHAIRE

JUDGEMENT

(1.) In this ease plaintiffs sued to redeem and recover possession of plaint property alleged to have been mortgaged by their ancestor in 1799. The plaintiffs, relying on an acknowledgment of 1865, have brought the present suit on August 12, 1924. The learned Subordinate Judge held that the acknowledgment was not valid and binding, and therefore the suit was barred by limitation. On appeal the learned Assistant Judge did not go into the question as to whether the acknowledgment was valid, but held that the plaintiffs suit was barred by limitation as the right to redeem was lost on account of the Acts of 1859 and 1861.

(2.) It is urged on behalf of the appellants that the mortgage deed of 1799 provided a period of seven years for payment of the mortgage amount, and the cause of action arose in 1806 and the acknowledgment of 1865 before the expiry of sixty years gave a fresh starting point of limitation, and therefore the present suit was within time.

(3.) According to Regulation V of 1827, oh. 1, s. VIII, Clause 1, suits for redeeming a mortgage were not governed by any limitation. But by Act XIV of 1859 such suits were made subject to a period of limitation for the first time. Under Section 1, Clause (15), of Act XIV of 1859 a suit against a mortgagee of immovable property had to be brought within sixty years from the time of the mortgage, that is from the date of the mortgage, unless an acknowledgment of the title of the mortgagor was made in writing in the meantime, By the combined operation of Section 18 of Act XIV of 1859 and Section 1 of Act XI of 1861, the time to bring such a suit was extended up to January 1, 1862, After that date the provisions of Act XIV of 1859 came into force. The acknowledgment on which reliance is placed on behalf of the appellants is dated September 8, 1865, long after the plaintiffs suit to redeem was barred under Act XIV of 1859. Under Act XIV of 1859 the suit had to be brought within sixty years from the date of the mortgage and the acknowledgment in order to give a fresh starting point of limitation had to be made in the meanwhile, i. e. before the efflux of the period of sixty years from the date of the mortgage. Under Section 29 of Act IX of 1871 "at the determination of the period hereby limited to any person for instituting a suit for possession of any land or hereditary office, his right to such land or office shall be extinguished." Under Art. 148 of Act IX of 1871 the limitation to redeem the mortgage began from the date of the mortgage and the suit to redeem had to be brought within sixty years from the date of the mortgage unless acknowledgment had been made in writing before the expiration of the prescribed period. It would, therefore, follow that not only the remedy but the right was extinguished by virtue of Section 29 of Act IX of 1871. Under Art. 148 of the Indian Limitation Act XV of 1877 limitation of sixty years runs from the time when the right to redeem accrued, but b. 2 of Act XV of 1877 enacted that "nothing herein or in that Act (i. e. Limitation Act of 1871) contained shall be deemed to affect any title acquired or to revive any right to sue already barred." Under Section 6 of the General Clauses Act X of 1897 "when any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect; or affect the previous operation of any enactment so repealed".