B. D. Agarwal, J. - (1.) THIS appeal is directed against the judgment and decree of the Civil Judge, Mirzapur, dated July 25, 1981.
(2.) THE facts relevant lie within a narrow compass. On April 25, 1921, the plaintiff executed a registered mortgage in favour of the predecessor-in-interest of the defendants in respect of the property specified in the plaint for a sum of Rs. 275/- only. THE period specified in the deed of mortgage for redemption was fifty years commencing from the date of the execution of the mortgage. THE suit for redemption by the plaintiff giving rise to this appeal was instituted on July 7, 1971. This was contested by the defendants on various grounds, including that the same was barred by limitation. THE trial court decreed the suit on May 8, 1978. THE appeal filed by the defendants against the decree was dismissed by the lower appellate court on July 25, 1981 which found also that the suit was within limitation. Learned counsel for the parties raised two fold contentions in support of the appeal. In the first place, it is urged that the suit giving rise to the appeal was barred by limitation. A little scrutiny reveals that the contention cannot be sustained. As mentioned above, the usufructory mortgage in this case was executed on April 25, 1921. The period agreed upon in the deed of mortgage for the redemption was fifty years commencing from the date of execution of the mortgage. This means, in other words, that this period was to expire on April 24, 1971. The Limitation Act, 1963, commenced on January 1, 1964. Under Article 61 (a) of the new Act, limitation prescribed is thirty years commencing from the date when the right to seek redemption accrues. Under Article 148 of the old Limitation Act, 1908, the Limitation prescribed was 60 years commencing from the date when the right to seek redemption accrued. It follows, thus, that when the new Act came into force on January 1, 1964, the cause of action to sue for redemption had not accrued either under the old or new Act. The period stipulated being 50 years commencing from April 25, 1921, the same was not over on January 1, 1964, when the new Act commenced. The contention of the applicants' learned counsel is that in view of the provision contained in section 30 (a) of the Limitation Act, 1963, the limitation could at the best extend upto December 31, 1970, that is, seven years from the date when the new Act came into force, and not beyond the same. Section 30 (a) insofar as is relevant provides : "30. Notwithstanding anything contained in this Act (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of (seven years) next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier." Section 30 (a), no doubt, enacts that the suit may be instituted within a period of seven years next commencing from the commencement of this Act in the case where this period of limitation is shorter than the period prescribed for such a suit under the old Act. The underlying assumption necessarily however, is that the cause of action has accrued prior to the commencement of the new Act. If, as in this case, the right to seek redemption did not accrue before January 1, 1964, when the new Act commenced, the limitation would not start to run. Article 61 (a) of the new Act provides shorter span to seek redemption by a suit in comparison to Article 148 of the old Act, but this does not alter the point of commencement of the period of limitation. Section 30 (a) quoted above does not over-ride either the stipulation in the deed of mortgage for the period of redemption. A suit for redemption in this case would have been premature on January 1, 1964 because the period of 50 years from April 25, 1921 had not expired. Section 30(a) evidently governs a case where the right to sue has accrued before 1-1-64 and the limitation commenced to run. I am supported in this interpretation by the decision of the Division Bench in Mani Devi v. Ram Prasad, AIR 1968 Patna 70 cited for the respondents, the right to seek redemption having accrued on April 25, 1971, the suit was within limitation under Article 61 (a) of new Limitation Act.
(3.) THE other contention raised by the appellants' learned counsel is that the defendants appellants raised certain constructions over the land transferred under the mortgage and hence they are entitled to be reimbursed as provided in section 63-A (1) of Transfer of Property Act. Section 63-A (1) lays down that where mortgaged property in possession of the mortgagee has during the continuance of the mortgage been improved, the mortgagor upon redemption shall, in the absence of a contract to the contrary, be entitled to the improvement and the mortgagor shall not, save only in cases provided for in sub section (2) be liable to pay the cost thereof. Sub-section (2) of section 63-A reads as under ; "(2). Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any accruing by reason of the improvement, shall be credited to the mortgagor." A perusal of the written statement for the defendants-appellants shows that there was no foundation laid therein to cover up the case under section 63-A. Parapragh 14 of the written statement, which the learned counsel for the appellants refers, does not specify the improvement claimed to have been made, nor does it refer to any amount whatever incurred as the cost in raising such constructions. Needless to say this is a matter within the special knowledge of the defendants-appellants themselves and it was upto them to have pleaded specifically the necessity or the circumstances which compelled the improvement and also the amount claimed on this account. THE recovery of cost being exceptional, the burden lay strictly upon the defendants-appellants. It also appears that there was no issue pressed for the defendants appellants on this score. In the absence of foundation laid upon facts, there can be no question of the court awarding any sum to the defendants appellants under section 63-A. No assistance can, in my view, be claimed to be derived by the appellants from Order 41 Rule 33 of the Code of Civil Procedure relied by the appellants' counsel in this behalf. For the reasons given above, the appeal is without merit and is dismissed. Costs Of this appeal on the parties. The record be sent to the court below without delay. Appeal dismissed.;