JAGAT NARAIN, J. - (1.) THIS is a revision application by Madan Lal, defendant, against an order of the trial court deciding one of the issue in the suit brought against him by Ram Narain and Ram Chandra plaintiffs and holding that the suit within limitation.
(2.) THE facts are these: Madan Lal, Parasmal and Prakash Chandra were the owners of a plot of a land which was surrounded by a boundary wall. Parasmal and Prakash Chandra mortgaged it in favour of Ram Narain and Ram Chandra plaintiffs under a mortgage -deed 17.10.50 for a sum of Rs. 3,000/ -. It was recited in the deed that possession had been transferred to the mortgagees, that the mortgagors will pay interest on the sum of Rs. 3,000/ - at annas -/10/ - per month monthly, that the property will remain in possession of the mortgagees till the principal amount and interest is paid and that if the whole amount due in favour of the mortgagees cannot be recovered by the sale of the mortgaged property the mortgagees will be entitled to recover the balance by the sale of other properties of the mortgagors. The case of the plaintiffs in the plaint is that on the date of the mortgage possession was transferred to them and they continued in possession till they were dispossessed by the Municipal Board of Nagour on 3.9.54. A children's park was constructed on the plot by the Municipal Board. The mortgagors as well as Mandan Lal filed an application to the Collector for compensation on 9.9.58. Then notices were issued under Sections 4, 6 and 9 of the Land Acquisition Act and an award was made by the Collector on 10.8.64 awarding a sum of Rs. 22,984/ - in favour of Madan Lal, Parasmal and Prakash Chandra. This amount was to be paid by the Municipal Board, Nagaur. A sum of Rs. 5,000/ - was paid by the Board on 17.12.64. The present suit was filed on 5 7.65 by the plaintiffs against the mortgagors and Madan Lal claiming the amount due on the mortgage; out of the compensation already received and to be received in furture from the Municipal Board, Nagaur. The suit was instituted against Madan Lal, Parasmal and Prakash Chandra who contested it inter alia on the ground that possession was never transferred to the mortgagees and that the suit was barred by limitation. A preliminary issue was framed by the trial court as to whether the suit was within limitation and argument of the parties were heard. The burden of the issue was placed on the plaintiffs. It is recorded in the order of the learned Civil Judge that neither party adduced any avidence on the issue The parties were evidently under the impression that it was not necessary to produce any evidence as to whether possession was transferred to the mortgagees or not. The trial Court held that the suit was within limitation.
(3.) THE contention on behalf of the applicants is that the mortgage money was payable on demand and so the suit to recover money became barred by limitation under Section 62 on 17.10.62. It is also argued that the suit is also barred by limitation under Article 113 from the date on which possession was lost namely 3.9.54. Reliance is placed on the decision of their Lordships of the Supreme Court in Monimala Devi v. Indu Bala : [1964]5SCR635 .;