(1.)This appeal, which was originally taken to the Judicial Committee, on special leave, granted by an Order-in-Council dated 2-8-1946, now stands transferred to this Court by reason of the abolition of the jurisdiction of the Privy Council. It is directed against a judgment and decree of a Division Bench of the Patna High Court dated 17-3-1944, affirming, on appeal, a decision of the Subordinate Judge of Purnea dated 27-2-1942.
(2.)The appellants before us are the first party defendants in a suit, commenced by the plaintiffs respondents, for enforcement of a simple mortgage bond by sale of the mortgaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence on the record, that the bond sued upon was not legally attested and hence could not rank as a mortgage bond. On this finding, he refused to make a decree for sale of the mortgaged property in favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did not become time barred by reason of the fact that there were several payments made by the defendants towards the satisfaction of the debt, which attracted the operation of S. 10, Limitation Act. Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but no appeal or cross objection was filed by the plaintiffs against the refusal of the trial Court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High Court, consisting of Fazl Ali, C. J. and Beevor, J., and the principal point canvassed on behalf of the defendants appellants was, that the trial Court was wrong in holding that the plaintiffs' claim for a personal decree was not barred by time. The argument put forward, was that the suit, as one for personal relief against the debtors, was barred on the expiry of 6 years from the date for repayment mentioned in the bond and the part payments relied upon by the plaintiffs in their plaint were ineffectual for the purpose of extending the period of limitation under S. 20. Limitation Act. The High Court on hearing the appeal came to the conclusion that the bond in suit was duly attested and was effective and enforceable as a mortgage bond, and that the view taken by the trial Court on the question of attestation could not be sustained on the evidence on the record. As the bond could be treated as a mortgage bond, the suit, as one for enforcement of a mortgage, was, in the opinion of the learned Judges, quite within time, and it was not necessary in these circumstances to call in aid the provisions of S. 20, Limitation Act, for the purpose of extending the period of limitation. The learned Judges held, however, that as the plaintiffs had not preferred any appeal or cross-objection attacking that part of the judgment of the trial Judge which dismissed their claim for a sale of the mortgaged property, they were unable to pass a mortgage decree in their favour. The result was that the decree made by the trial Judge was affirmed. It is the propriety of this decision that has been challenged before us in this appeal.
(3.)Mr. De, who appeared in support of the appeal has contended in the first place that even if the High Court was right in holding that the bond in suit was effective as a mortgage bond and the suit could be treated as one for enforcement of a mortgage, no decree for money could be passed against the defendants personally, unless the suit was instituted within the period prescribed by Art. 116, Limitation Act. The High Court, it is said, overlooked this aspect of the case altogether and was wrong in not considering the question of limitation. It is argued by the learned counsel that on the point of limitation the decision of the Subordinate Judge was wrong, and as the payments relieved upon by the plaintiffs had not been acknowledged in the manner contemplated by S. 20. Limitation Act, no extension of time was permissible under the provisions of that section. Mr. De further contends that on the question of attestation, the correct finding was that arrived at by the Subordinate Judge and it is impossible to hold on the evidence that has been adduced in this case that the bond was legally atteststed.