BHUBANESHWAR NARAYAN Vs. RAI SATYADEO NARAYAN

JUDGEMENT

(1.) This is an appeal by the defendant in a suit brought by the plaintiffs for the recovery of a sum of Rs. 200 on the basis of a bond dated 18 July 1927. The bond purported to be a sudbharna bond and was executed by the defendants to secure a sum of Rs. 1000 by mortgaging certain properties. Out of this sum Rs. 200 was paid in cash and the balance of Rs. 800 was left with the plaintiffs to pay off a prior mortgage dated 22 May, 1922. The plaintiffs did not pay the sum of Rs. 800 to the prior mortgagee, as the latter claimed that a larger sum was due to him and the defendants did not give possession of the mortgage property to the plaintiffs. The present suit was brought by the plaintiffs on 15 May 1936 and the only ground on which the defendant-appellant contested it was that it was barred by limitation.

(2.) The plea of limitation having been negatived by the Courts below the defendant has appealed to this Court. Now, it seems to me to be clear that the bond executed by the defendants in favour of the plaintiffs never took effect as a mortgage bond, because as I have already stated the plaintiffs did not pay the sum of Rs. 800 either to the prior mortgagee or to the defendant and the defendant did not give possession of the mortgaged properties to them. The bond however may still be treated as a simple money bond. It is not denied by the defendant that a sum of Rs. 200 was paid to him by the plaintiffs as a loan and the bond contains an express covenant to "repay the entire loan in cash in one lump sum on the full moon day of Bhado 1341," (corresponding to 23 September 1934). Now, if the bond is to be treated as a simple bond.

(3.) I have no doubt that limitation for the present suit must be deemed to run from 23 September 1934, that is to say the date on which the defendant promised to repay the loan. Art. 66 provides that when a suit is brought on a single bond in which a day is specified for payment, "the period of limitation is three years from the date so specified. As the bond on which the suit is brought was registered the period of limitation in this case will be six years and in my opinion the appropriate Art. to be applied to the present case is Art. 116 which provides that for a suit for compensation for the breach of a contract in writing registered the period of limitation is six years from the date on which the breach took place.