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TMI Blog1940 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed on the 9th December, 1932. The question which arises is whether the payment of the ₹ 200, on the 16th December, 1920, saves the suit from being barred by the law of limitation. That the personal remedy against the mortgagors is barred is conceded but it is said that inasmuch as the payment of the ₹ 200 towards interest was made within eight years of the creation of the mortgage a fresh period of limitation started and the suit having been filed within twelve years from the date of the payment of interest the appellants are entitled to have the property sold in order to realise what is due to them. The District Munsif held that the payment of interest on the 10th of December, 1920, did operate to save limitation and granted the appellants a decree. On appeal the Subordinate Judge of Salem held that the suit was out of time. 2. The Subordinate Judge's decision was based on his interpretation of Section 20 of the Limitation Act which says that where interest on a debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorised in this behalf, a fresh period of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by reason of the provisions of Section 20 of the Limitation Act the payment was sufficient to keep alive the debt against the universal donee. In Yagnanarayana v. Venkata Krishna Rao AIR1925Mad1108 , Coutts-Trotter, C.J, and Ramesam, J. considered that a person who Was a party to a mortgage contract could make an acknowledgment even after his interest in the properties had ceased, but they added, that the acknowledgment bound only him or persons claiming through, him i.e., assignees from him after the acknowledgment. They accepted the opinion expressed by Mookerjee, J. in Surjiram Marwari v. Barhamdeo Prasad (1905) 1 C.L.J. 337, to which I shall presently refer. In Muthu Chettiar v. Muthuswamy Iyengar (1932)63MLJ111 , Jackson, J. held that an acknowledgment of mortgage debt made by a mortgagor after he had lost his interest in the mortgaged property affected both him and his alienee, but Krishnan Pandalai, J. who formed the Bench with Jackson, J. did not go to this length. In his view an acknowledgment of the mortgage debt made by a mortgagor who had sold a portion of the mortgaged property, but remained personally, or in respect of the unsold portion, liable on the mortgage was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral properties under a deed dated 28th April, 1887. He then sold one of them to B who mortgaged it to C and in a mortgage suit by C the property was sold and purchased by D. After the sale had taken place A paid part of the principal as well as interest under the mortgage to B and made an acknowledgment of his liability under it. The question was whether the acknowledgment kept the mortgage debt alive against the property bought by D. It was held that it did. Maclean, C.J., expressed a similar opinion sitting with Holm-wood, J., in Domi Lai Sahu v. Roshan Dobay I.L.R. (1906) Cal. 1278. But these decisions of the Calcutta High Court are not in accord with that of Mookerjee, J., in Surjiram Marwari v. Barhamdeo Prasad (1905) 1 C.L.J. 337, on which reliance was placed in Yagnanarayana v. Venkata Krishna Rao AIR1925Mad1108 . Mookerjee, J., there said: It is argued on behalf of the. respondents that the second mortgagee derives his title or liability from the mortgagor, and, that, consequently, an acknowledgment by the mortgagor in favour of the first Mortgagee, is operative against the second mortgagee, no matter whether such acknowledgment was given before or after the second mortga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortgagee is left to his remedy against the property. 9. I do not share the opinion that the English authorities are not in point. There is no fundamental difference between the provisions of Sections 19 and 20 of the Indian Limitation Act and the corresponding provisions of the English Act. Section 40 of the Act for the Limitation of Actions and Suits relating to Real Property (3 and 4 Will. IV Ch. 27) was in these terms: That after the said 31st December, 1833, no action or suit or other proceeding shall be brought, to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther this payment is to be considered as their payment, that is to say, whether he is to be considered as their agent in making it. They say in their statement of defence that if this payment was made it was not made by their authority or with their knowledge. In my opinion, then, even if the entry is admissible, it does not prove anything that can help the plaintiff". 12. Lindley and Lopes, LLJ., delivered judgments to the same effect. I can see no reason why the principle propounded in Bolding v. Lane (1863) 1 De. G.J.S. 122: 46 E.R. 47, and Newbould v. Smith (1886) 33 Ch. D. 127, should not be applied in India. The principle is one which accords in full with the spirit of the equity and unless the Indian Statute of Limitation is so worded as to preclude its application - and I have said sufficient to indicate my opinion that it does not - it must be applied. It follows that in my judgment the decisions of this Court which have not applied this principle should no longer be regarded as good law. 13. I hold that the case has been rightly decided by the Subordinate Judge and that the appeal should be dismissed with costs. King, J. 14. I agree. Krishna Swamy Ayyangar, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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