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TMI Blog1930 (11) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ese contentions and decreed the claim. The defendants have appealed from the decree and raised these points afresh. 3. The suit on the basis of the earlier bond resulted in a preliminary decree for sale dated 8th March 1923. It had been instituted by Jai Kishen Das as the sole plaintiff. It is now an admitted fact that the sole plaintiff died on 2nd May 1923 and no application for the substitution of the names of his heirs was ever made within the three months allowed by law. On 12th September 1923 that is to say more than three months after the death but within 60 days of the expiry of the period of three months an application was made on behalf of the heirs of Jai Kishen Das for the preparation of the final decree. The fact of the death was mentioned in this application but there was no formal prayer for the substitution of the names or for the setting aside of the abatement. The prayer was for the passing of a final decree. An order for the issue of notice was passed on the same day. It is a controversial point whether notices were actually served on the mortgagors or not. File D of that suit has now been weeded out and it is not possible definitely to ascertain whether services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having; abated there was in existence no enforceable decree under which the mortgagee could realize his amount. He therefore argues that there was no consideration for the mortgage deed in question at least to the extent of Rs. 17,800. The reply on behalf of the respondents is that the case would be covered by Section 25 (3), Contract Act, under which a promise made in writing and signed by the person to be charged therewith to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation for suits, is excepted. The first suggestion made by Mt. Pearey Lal Banerji, is that the expression limitation of suits merely means a bar on suits and not necessarily a bar of limitation of time for suits. This suggestion does not appeal to us. We think that the word limitation means the limitation of time as prescribed by the law of limitation in force. There can be no question that the abatement of the previous suit was dug to the rule of limitation under which an application for substitution of names had to be made within the prescribed period of three months. The learned advocate for the appellants contends that the expression is confined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract voidable if the other party had the means of discovering the truth with ordinary diligence. He strongly relies on the opinion of Messrs. Pollock and Mulla in their Commentary on this section that there is in India a departure from the rule which prevails in England. The learned authors also observe that If, as seams not altogether improbable, they were not intended to alter the English rule, they were chosen with singular infelicity. 11. No direct authority on this point has been cited before us by the learned Counsel for either party. We however think that unless on account of the clear language of the section we are driven to hold that there had been a departure from the long established rule of English law we would be reluctant to interpret the section in that way. If the statute were clear it would be our bounden duty to give effect to its meaning quite irrespective of any consideration as to what the law is in England. But on the face of it the exception is ambiguously worded. The difficulty is caused mainly by the punctuation, viz. a comma after the word silence which seams to indicate that the words ' fraudulent within the meaning of Section 1, apply both to misrepr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preliminary decree at a higher rate of interest. In all probability they would have contested the application for the preparation of the final decree. One might suspect that Mr. Duli Chand, who is a legal practitioner of some standing and who took the mortgage in favour of his minor sons under the guardianship of his clerk, was aware of the legal flaw which had come in owing to the omission to apply within the time required by law and that he would have been anxious to procure a fresh document in order to get over that difficulty. On the other band, as has been pointed out by Mr. Pearey Lal Banerji, some confusion in the minds of the members of the legal profession might have been caused in consequence of a ruling of this High Court in Gujrati v. Sital Misir A.I.R. 1922 All. 209, which was in force in 1923 and was subsequently overruled by a Full Bench in Churiya v. Baneshwar AIR 1926 All 217. There might at that time have been some-doubt as to whether an application for setting aside the abatement could have been made when no formal order for abatement had been passed. Under Order 6, Rule 4, the particulars of fraud and misrepresentation which are pleaded must be specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in September 1923, asking him to pay the amount of the decree or else he would take out execution. On which he told him that he could not pay the money but that he was prepared to execute a fresh document. He says that Babu Duli Chand agreed to a fresh bond being executed and nine annas was settled as interest. Some three or four days afterwards Babu Duli Chand sent a document through Abdul Wahid, and it was said by him that as Jai Kishen Das was dead about a month before, he would take a fresh bond in the name of his sons. The statement of Niaz Ahmad Khan does not make it clear that the statement as to the time of the death of Jai Kishen Das was made before the agreement to execute a fresh bond and to pay interest at nine annas per cent per annnm. All that he says is that such statement was made before the bond was executed. 18. Similarly Fiyaz Ahmad Khan says that Babu Duli Chand told him that he was going to execute the decree unless payment was made, to which Faiyaz Ahmad Khan replied that the payment could not be made for want of money; and then the fresh bond was suggested to which Niyaz Ahmad Khan agreed. He then adds that Babu Duli Chand said that the bond would stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety. He stated that when he applied for the final decree he did not know whether it was time barred, nor did he know at the time of the execution of the bond that the suit had abated. He also said that once he was the leading practitioner in Ghaziabad and had made a lot of applications for substitution of heirs, but none since 1920, and that he did not know of the amendment of the law reducing the period for applications for substitution for names from six months to three months. But at another place in his deposition he said that in the whole of his practice he did not remember having ever Applied for substitution of heirs. This is not reconcilable with the previous statement. He stated that he did not consult any lawyer, and if he had known of the three months' rule he would have put in that very application. 22. But as a matter of fact, even when he applied within six months he did not ask for any substitution of the names of the heirs. His clerk Munshi Lal stated that on the evening of the day of the death of Lala Jai Kishen Das, Babu Duli Chand left for Allahabad and on the next day Niaz Ahmad went to his house on a condolence visit. No such question was put to Niaz Ahmad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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