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TMI Blog1951 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... d to make a decree for sale of the mortgaged property on favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did not become time-barred by reason of the fact that there were several payments made by the defendants towards their satisfaction of the debt, which attracted the operation of section 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors the High Court of Patna, but no appeal or cross-objection was filed by the plaintiffs against the refusal of the trial Court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High Court, consisting of Fazl Ali C.J. and Beevor J., and the principal point canvassed on behalf of the defendants appellants was, that the trial court was wrong in holding that the plaintiffs claim for a personal decree was not barred by time. The argument put forward was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge and it is impossible to hold on the evidence that has been adduced in this case that the bond was legally attested. 4. Mr. Sinha, appearing on behalf of the plaintiffs respondents, has, on the other hand, attempted not only to repel the contentions advanced on behalf of the appellants; he had further argued that even if no appeal or cross objection was filed by the plaintiffs against that part of the decree of the trial court which went against them, it was open to the High Court, in view of the findings which it arrived at in the question of attestation, to make mortgage decree in this case under the provisions of Order 41, Rule 33, of the Civil Procedure Code. The learned Counsel invited us to exercise our powers under the said provision of the Civil Procedure Code in this appeal and pass a mortgage decree in favour of his clients on the basis of the findings of the High Court. 5. We will first take up the question of limitation, and to appreciate the nature of the controversy that centers round this point, it will be convenient to advert to a few relevant dates. The mortgage bond is dated the 8th of April, 1927, but it is no longer disputed that the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the bond. The second payment was of ₹ 75 and was made on the 5th June, 1929. The third payment is dated 8th of March, 1931 and the fourth was made within one month after that on 3rd April, 1931. The fifth and the sixth payments were both made in the month of May, 1932, the seventh on 25th July, 1934, and the last payment was made on 15th of May, 1936. The present suit was instituted, as said above, on the 4th March, 1940.. There cannot be any doubt that if a fresh period of limitation could be computed from each one of the payments mentioned above, the plaintiffs' suit would be quite in time even if it is treated as a suit for obtaining a money decree against the defendants personally. The contention of the appellants is that as there is no acknowledgment in the handwriting of, or in any writing signed by, the prayer in respect of any of these payments, they could be of no avail in giving a fresh start to the period of limitation under section 20 of the Limitation Act. 7. For determination of this point, it is necessary to turn to the provision of section 20 of the Limitation Act. The section, after it was amended by Act I of 1927, stands as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udes oral testimony. Unless, there fore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (See Md. Moizuddin v. Nalini Bala AIR1937Cal284 Lal Singh v. Gulab Rai I.L.R. 55 All 280, Venkata Subbhu v. Appa Sundaram I.L.R. 17 Mad. 92, Ram Prasad v. Mohan Lal A.I.R. 1923 Nag 117, Viswanath v. Mahadeo Bom. 453)). 10. But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in this suit. 12. The question now is whether we can pass a mortgage decree in favour of the plaintiffs on the basis of the finding of the High Court that the bond was properly attested; and it is not disputed that no question of limitation would in that case arise. To decide this question there are two points which require consideration : (1) Whether the finding of the High Court on the question of attestation as a correct and proper finding on the evidence adduced in this case ? and (2) If it is so, whether the facts of the plaintiffs not having preferred an appeal or cross-objection against that part of the judgment of the trial Judge which refused them a mortgage decree, stands in the way of their claiming any relief other than what was given to them by the trial Judge ? 13. As regards the first point, the evidence show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preted to mean execution as well. We do not think that this assumption on the part of the learned Judges of the High Court is justified. In the first place, Matukdhari Prasad, the plaintiffs' own witness, is quite precise in his statement and makes a distinction between the writing of a document and its signing or execution. According to him, the bond was written, executed and attested on the same day. But what is more important for our purpose is the place of the execution of the document. If it was executed at the plaintiffs' house, where it was admittedly written, the date of execution would naturally be the date when the deed was scribed or engrossed. This is exactly the suggestion which the plaintiffs' lawyers made to defendant No. 1 Sant Lall when he was being cross- examined. He was asked as to whether the document was executed at the plaintiffs' village or at Katihar, where it was taken for registration. The witness persisted in saying that he and the other executants put their signatures not at the place of the plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the morning. This story seems to fit in with the circumstances and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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