RAGHUNATH BHAGAT Vs. MEGHU MANDER

JUDGEMENT

(1.) This is the plaintiffs appeal in an action to enforce a mortgage. Both the Courts below have dismissed the suit on the ground that it was barred by limitation. The mortgage was dated 11 December 1914 and the due date for payment of the money was 11 December 1915. The suit was admittedly instituted more than twelve years after the due date. In the plaint the statute of limitation was sought to be avoided by pleading certain payments. Both the Courts below have found that the payments alleged by the plaintiffs had not been established and they did not save the suit from the bar of limitation. In this Court the learned advocate for the plaintiffs-appellants has taken a new point which was not taken in either of the Courts below.

(2.) The point is that the period of limitation was suspended during the time the mortgaged property was under water. This point as I have said was not taken in the Courts below and it was not stated in the plaint as a ground for avoiding the statute of limitation. There is no clear finding by the Courts below as to when the land actually went under water and when it came out of water. But it appears from the judgments of the Courts below that the land came out of water shortly before the institution of the suit. The question is whether the fact of the land having diluviated can give rise to a suspension of the period of limitation. Section 9, Lim. Act, specifically provides that when once time commences to run no subsequent disability or inability stops it.

(3.) It is however contended that on general principles the plaintiffs are entitled to a suspension as they could not effectually institute a suit for sale of the property when the property was not in existence. The fact that the mortgaged property went under water did not in any way affect the plaintiffs right to bring a suit upon the mortgage. In fact Section 68, T.P. Act, gives the mortgagee the right to sue for the mortgage money where by any cause other than wrongful act or default of the mortgagor or mortgagee the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of Section 66 of the Act. It was therefore open to the plaintiffs to bring a suit inspite of the fact that the mortgaged property had gone under water. Several cases have been cited on both sides to show either that there is no suspension of the period of limitation apart from the provisions of the Limitation Act itself or that limitation has been held to be suspended under circumstances not contemplated by the Limitation Act.