GHASI KHAN Vs. THAKUR KISHORI RAMANJI MAHARAJ

JUDGEMENT

(1.) This is a defendant's appeal in a suit for sale on a mortgage of 31 July 1910 executed by the appellant and Zabar Khan in favour of the respondent. The defence to the suit by the appellant among others was that the claim of the plaintiff was barred by limitation and that no money had passed to them.

(2.) The mortgage was for a term of six years, and it was provided in the deed that upon failure of payment of interest for one year the mortgagee would be entitled to recover the whole of the mortgage money without waiting for the expiry of his stipulated time. It is, therefore, clear that no interest having been paid for one year the mortgagee was entitled to recover the money by suit on foot of the mortgage. The present suit having been brought after 12 years from that date the claim of the plaintiff must be held to be barred unless the plaintiff proved either payment of interest or principal, or claimed that the suit was not barred by reason of an acknowledgment. The plaintiff claimed that the two mortgagors had made certain payments, but the Courts below have found that the payment of any interest by Zabar Khan had not been proved, but that payment of interest by Ghasi Khan had been proved and the claim as against him was not barred by time. The Court of first instance having decreed the suit against Ghasi Khan alone, the plaintiff preferred an appeal and the present appellant Ghasi Khan filed cross objections. At p. 15 of the paper book will be found the points that were contested before the learned Judge. The result of the findings was that the Court accepted the findings of fact arrived at by the first Court, namely that the alleged payment by Zabar Khan had not been proved, but that the payment of interest by the appellant had been proved. As the Court of first instance had reduced the amount of interest as provided for by the deed, the learned Judge in appeal modified the decree of the first Court as against Ghasi Khan.

(3.) Ghasi Khan has come up in appeal before us. Two points have been argued by the learned advocate for the appellant. The first is that payment of interest by one of the two co-mortgagors does not keep alive the mortgage but only the personal liability of the person who actually pays interest. The second point taken is that the appellant should not be made responsible for the whole debt when the claim as against his co-mortgagor had been dismissed. It may, however, be mentioned that these grounds were not definitely taken in the memorandum of appeal and were not taken and argued before the lower appellate Court.