ANANT RAM Vs. KHUSHHAL SINGH

JUDGEMENT

(1.) The plaintiffs have appealed from the dismissal of their suit for sale. The mortgage was a simple one and time of payment five years from the date of the bond which was 11 August, 1905. There was a further stimulation that interest shall be paid every six months and on non-payment compound interest shall be charged. Then the recital goes on "dar surat waida khilafi" (in default) the mortgagee will have the right to recover the entire sum due to him with interest and compound interest by sale of the property. In the plaint it was stated in para. 5 that two six-monthly instalments of interest had been paid in 1926 meaning that the first default occurred on 11 August 1907. There was another payment of 11 February 1910 also alleged. There is no proof of the second payment of interest. The trial Court made no mention of any such payment and in the grounds of appeal to the lower appellate Court it was not suggested that the trial Court had overlooked any evidence or failed to frame an issues on the question of the payment of interest on 11 February 1910.

(2.) Both the Courts held that in default of payment meant in default of payment of the six-monthly interest and not in default of payment at the end of the stipulated period of five years. Having interpreted the terms of the document in this way they applied the Full Bench rulings of this Court in the case of Gaya Din v. Jhuman Lal [1915] 37 All. 400 and Shib Dayal V/s. Mehrban A.I.R. 1923 All. 1 and held that a cause of action accrued on the 11 August 1907, and the suit brought on 15 July 1922, was time barred.

(3.) The learned Counsel for the appellant has drawn our attention to the remarks of their Lordships of the Privy Council on the two Full Bench rulings of this Court: see Pancham V/s. Ansar Hussain A.I.R. 1926 P.C. 85. It appears from those remarks that their Lordships were not satisfied as to the correctness of the principles enunciated in those two rulings. On this ground alone we are not prepared to refer the question again to another Full Bench. A Divisional Bench of this Court must follow the Full Bench decisions until their Lordships of the Privy Council express a definite disagreement with them.