KALLU SINGH Vs. MAKRAND SINGH
HIGH COURT OF ALLAHABAD
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(1.) The only point in the appeal before us is whether the remedy sought by the decree-holder under Order XXXIV, Rule 6, of the Code of Civil Procedure, is barred by limitation. The learned Judge of the lower appellate court has applied Article 66 of the Limitation Act. The bond provided that the money advanced upon it was to be paid after the lapse of seven years and the interest was to be paid yearly. The mortgagee was given the option of suing either on default in the payment of interest or after the expiry of the term. The mortgagee sued after the expiry of the term and obtained a decree against the mortgaged property. It was sold in execution of the decree and fetched only Rs. 25. The amount of the decree was Rs. 1,466-13-0. The decree-holder then applied under Order XXXIV, Rule 6, for a personal decree. The judgment-debtors pleaded limitation, on the allegation that the cause of action accrued to the mortgagee after one year of the execution of the bond when the first default in payment of interest was made. The trial court yielded to this objection and rejected the prayer of the decree-holder for a personal decree against the legal representatives of the mortgagor. On appeal by the decree-holder the learned District Judge, disagreeing with the first court, reversed its order and remanded the case for trial. The appeal before us is from the remand order of the learned District Judge, dated the 8th of August, 1918, by which he held that the remedy of the mortgagee for obtaining a personal decree under Order XXXIV, Rule 6, was not barred by limitation. It is contended on behalf of the appellants, the judgment-debtors, that the cause of action accrued to the mortgagee for a personal decree on the first default in the payment of interest, that is, some time in September, 1903. As the bond is a registered bond, the mortgagee could claim six years from that date. Had he asked for a personal decree within six years of September, 1903, he would have been within time. He brought the suit on the mortgage some time in 1914 and by that time the personal remedy had become barred. We are unable to agree with the learned Counsel for the appellants, in view of a decision of this Court reported in Gaya Prasad v. Sher Ali (1917) 15 A.L.J.,313. The bond in that case contained almost the same terms as the bond in the present case. The learned Judge held that the bond was a simple bond and the article of the Limitation Act applicable was Article 66. They calculated the period from the expiry of the term given in the bond. In the present case the term expired in September, 1909; the mortgagee instituted his suit in 1914 and his suit was therefore within time.
(2.) The appeal fails and is dismissed with costs. The stay order is discharged.;
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