1951 (10) TMI 26 - SC - Indian Laws

Summary

Issues Involved:
1. Attestation of the mortgage bond.
2. Limitation period for filing the suit.
3. Applicability of Section 20 of the Indian Limitation Act.
4. Plaintiffs' entitlement to a mortgage decree without filing an appeal or cross-objection.

Detailed Analysis:

1. Attestation of the Mortgage Bond:
The primary issue was whether the bond was legally attested. The trial Judge held that the bond was not legally attested, while the High Court disagreed, finding the bond duly attested. The Supreme Court examined the evidence, noting discrepancies in the dates when the bond was written, executed, and attested. The bond was written on April 8, 1927, but executed on April 12, 1927. Witnesses testified that the bond was written, signed, and attested on the same day, but the Supreme Court found this improbable given the bond's execution date. The Supreme Court concluded that the bond was not attested in a due and proper manner, agreeing with the trial Judge's view.

2. Limitation Period for Filing the Suit:
The suit was filed on March 4, 1940, more than 6 years after the due date of March 6, 1928. The trial Judge ruled that the claim for personal relief was not time-barred due to payments made by the defendants, invoking Section 20 of the Limitation Act. The High Court found the bond enforceable as a mortgage bond, making the suit timely. However, the Supreme Court emphasized that for a personal decree, the suit must be filed within the period prescribed by Article 116 of the Limitation Act, which is 6 years from the due date unless extended under Section 20.

3. Applicability of Section 20 of the Indian Limitation Act:
The plaintiffs claimed several payments by the defendants extended the limitation period under Section 20. The Supreme Court noted that for Section 20 to apply, payments must be acknowledged in writing by the debtor. In this case, there were no such acknowledgments before the suit was filed. The Supreme Court held that the payments, without written acknowledgment, could not extend the limitation period, making the suit time-barred for obtaining a personal decree.

4. Plaintiffs' Entitlement to a Mortgage Decree Without Filing an Appeal or Cross-Objection:
The plaintiffs did not appeal or file a cross-objection against the trial Judge's refusal to grant a mortgage decree. The High Court suggested that under Order 41, Rule 33, of the Civil Procedure Code, it could pass a mortgage decree based on its findings. However, the Supreme Court, having found the bond not duly attested, ruled that this issue did not require consideration. Consequently, the plaintiffs were not entitled to a mortgage decree.

Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments and decrees of the lower courts, and dismissed the plaintiffs' suit. Each party was directed to bear its own costs in all courts.