SHEO PARTAB SINGH Vs. TAJAMMUL HUSAIN

JUDGEMENT

(1.) This was a suit to recover money due on two mortgages. The first mortgage was dated the 21 July 1892. The mortgage money became due on 21 of July 1897 and the period of limitation for the suit, under Art. 132, expired on the 21 of July 1909. The second mortgage was dated the 12 of September 1892. The mortgage money became due on 12 September 1896, and the period of limitation, under Art. 132, expired on the 12 September 1908. The plaintiff's case is that the suit could have been instituted under Section 31 of the Indian Limitation Act, 1908, up to the 6 of August 1910, and before the expiration of that special period of limitation, namely, on the 18 July 1910, he obtained a written acknowledgment of the mortgagor's liability under the deeds in suit so that his period of limitation was extended under Section 19 of the Act up to the 18th July 1922. The suit was in fact instituted on the 27 of February 1922.

(2.) The Courts below have dismissed the suit on the ground that it is barred by limitation. It is admitted on behalf of the respondent that the right of suit was extended by Section 31 up to the 6 of August 1910, but the argument is that although the right of suit subsisted up to the 6 of August 1910, nevertheless "the period prescribed for the suit" within the meaning of Section 19 is the period prescribed in the schedule, namely, a period of 12 years under Art. 132. On this reasoning the acknowledgment obtained on the 18 of July 1910 was ineffectual for giving a fresh period of limitation under Section 19.

(3.) It is necessary to consider the circumstance in which Section 31 was enacted. The view taken by the Allahabad High Court, as well as by certain other High Courts, was that the period of limitation for suits on simple mortgages was sixty years under Art. 147. Certain other High Courts took the view that the period of limitation was only 12 years under Art. 132. The Privy Council in the case of Vasudeva Mudaliar V/s. Srinivasa Pillai [1907] 30 Mad. 426 finally decided that the period of limitation was 12 years under Art. 132. This meant that mortgagees in the United Provinces whose money had become due more than 12 years before the decision of the Privy Council would be unable to enforce their mortgages. They would have lost their right of suit owing to the wrong interpretation of the law which had prevailed in the United Provinces. In order to prevent such hardship Section 31 was specially enacted in the Limitation Act of 1908 enabling mortgagees, whose right of suit would ordinarily be barred by the 12 years rule of limitation under Art. 132, to bring suits upon their mortgages within sixty years from the date when the money became due or within two years from the passing of the Act whichever period expired first. It is not denied that under Section 31 the plaintiff was entitled to sue upon his mortgages up to the 6 of August 1910, but it is denied that this section lays down a "period of limitation" and it is contended that even if an acknowledgment of liability is obtained within the two year period no fresh starting point is given for limitation tinder Section 19.