AFIRUDDIN Vs. JOY CHANDRA NAHA

JUDGEMENT

(1.) This appeal which arises out of a suit to enforce a mortgage bond brought by the plaintiff, must, in our judgment, succeed on one ground, namely, the ground of limitation. The plaintiff based his cause of action in the suit, on the stipulation contained in a document executed on 10 Magh 1316 B.S., corresponding to 23 January 1910. In that document there was a stipulation to the effect that the mortgage money was to be repaid in Falgoon 1321 B.S. It appears however that in Baisakh 1320 B.S., i.e., in April 1914, the plaintiff was dispossessed from the mortgaged property. So far as the plaint is concerned both the due date according to the mortgage bond, viz., Falgoon 1321 and the dispossession of the plaintiff in 1320, have been mentioned. The question is having regard to the accrual of the cause of action for the present suit in Baisakh 1320 by the dispossession of the plaintiff, could it be said that limitation was saved by the stipulation contained in the mortgage bond to the effect that the money was to be repaid by Falgoon 1321 B.S. The answer to that question must be in the negative, regard being had to the definite stipulation contained in the mortgage bond itself, and regard being had also to the provisions of law contained in Section 68, T.P. Act. We have anxiously considered the terms of the document and it appears to us that it could not be said that the cause of action so far as the present suit was concerned was the non-payment of the mortgage money in Falgoon 1321. It seems to us that upon the wording of the document as it 3tands the plaintiff was entitled to sue for the mortgage money on his being dispossessed by the mortgagor in Baisakh 1320 (April 1914). The position taken up by the appellant before U3 is amply supported as we have already indicated above by the mortgage bond itself as also by the provisions contained in Section 68, T.P. Act. It also finds support to a certain extent from the decision of the Judicial Committee of the Privy Council in the case of Lal Narsingh Partab Bahadur Singh V/s. Mohammad Yaqub Khan A.I.R. 1929 P.C. 139.

(2.) In this view of the matter it must be held that the plaintiff's cause of action for the present suit having arisen in April 1914 and a suit not having been instituted before 8th December 1926, the plaintiff's claim in suit was barred by the law of limitation. It need hardly be stated that the accrual of the cause of action in 1321 on the due date mentioned in the mortgage bond could not in any way stop the period of limitation which had commenced to run against the plaintiff from Baisakh 1320, the time when the plaintiff was dispossessed by the mortgagor, and which dispossession gave the cause of action to the plaintiff for the present suit.

(3.) Our attention has been drawn by the learned advocate appearing for the respondents to two decisions; one a decision of the Patna High Court in the case of Jag Sahu V/s. Mt. Ram Sakhi Quer A.I.R. 1922 Pat. 167, and the other a decision of the Bombay High Court in the case of Dattambhat Rambhat V/s. Krishna Bhat (1910) 34 Bom. 462. We have been unable to discover anything contained in those two cases which would support the position sought to be taken up by the respondents in this appeal or which could in any way be held to go against the position which the appellants have taken up before us with reference to the question of limitation arising for consideration in the present case. It is to be noted that the question of limitation urged in the present appeal has been raised before us for the first time. The question was not raised either in the trial Court or in the Court of appeal below, nor was the question of limitation raised in the grounds of appeal presented to this Court, but all this would not debar us from going into the question of limitation in which arises upon the pleadings in this suit and which can be disposed of on the judgments of the lower Courts as they stand, and no question of fact has, to be enquired into to enable us to dispose of the question. Reference in this connexion may be made to the decision of a Special Bench of this Court in the case of Balaram V/s. Mangta Dass (1907) 34 Cal. 941 where it was held by the Special Bench as a Court of last resort, that a question of limitation raised before that Bench for the first time, was one which could be gone into, although it was not raised or discussed at any previous stage of the litigation and was not raised even in the memorandum of appeal to the High Court. The Special Bench held that the provisions of Section 4, Lim. Act, being mandatory, the Court was bound to give effect to the plea of limitation, and hold that the suit was barred by limitation. We gave the learned advocate for the appellants in this appeal, leave to argue the question of limitation, and have arrived at a conclusion in favour of the appellants, so far as that question is concerned. In this view of the matter it is not necessary for us to discuss the other points that have been taken in support of the appeal to this Court, The plaintiff's claim in suit is held by us to be barred by limitation.