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PETITIONER:

SANT LAL MAHTON

Vs.

RESPONDENT:

KAMALA PRASAD.

DATE OF JUDGMENT:

17/10/1951

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

SASTRI, M. PATANJALI

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1951 AIR 477 1952 SCR 116

ACT:

Indian Limitation Act (IX of 1908), s. 20 (1)--Payment

of interest before expiry of period of limitation--Acknowl-

edgment in writing after limitation--Whether gives fresh

period of limitation-Acknowledgement after institution of

suit, whether sufficient.

HEADNOTE:

While s. 20 of the Limitation Act requires that the

payment should be made before the expiration of the period

of limitation, it does not require that the acknowledgement

of the payment should also be made within that period. But

it is essential that such acknowledgement, whether made

before or after the period of limitation, must be in exist-

ence prior to the institution of the suit. An acknowledge-

ment of the payment by the defendant in a written statement

filed after the institution of the suit is not enough.

Mohd. Moizuddin v. Nalini Bala (I.L.R. [1937] 2 Cal.

137), Lal Singh Gulab Rai (I.L.R. 55 All. 280), Venkatasubbu

v. Appa Sundaram (I.L.R. 17 Mad. 92}, Ram Prasad v. Mohan

Lal (A.I.R. 1923 Nag. 117), Viswanath v. Mahadeo (I.L.R. 57

Born. 453) approved.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 81 of

1950. Appeal from a judgment and decree dated 17th March,

1944, of the High Court of Judicature at Patna (Fazl Ali

C.J. and Beevor J.) in F.A. No. 47 of 1942, arising out of

decree dated 27th February, 1942, of the Subordinate Judge

of Purnea in Title Mortgage Suit No. 7 of 1940.

B. C. De (Bhabhananda Mukherjee, with him) for the

appellants.

S.P. Sinha (B. K. Saran, with him) for the respondent.

1951. October 17. The Judgment of the Court was deliv-

ered by

MUKHERJEA J.--This appeal, which was originally

taken to the Judicial'Committee, on special leave, granted

by an Order in Council dated August 2, 1946,

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now stands transferred to this court by reason of the aboli-

tion of the jurisdiction of the Privy Council. It is di-

rected against a judgment and decree of a Division Bench of

the Patna High Court dated March 17, 1944, affirming, on

appeal, a decision of the Subordinate Judge of Purnea dated

February 27, 1942.

The appellants before us are the first party defendants

in a suit, commenced by the plaintiffs respondents, for

enforcement of a simple mortgage bond, by sale of the mort-

gaged property. The trial Judge, while deciding all the

other issues in favour of the plaintiffs, held on the evi-

dence on the record, that the bond sued upon was not legally

attested and hence could not rank as a mortgage bond. On

this finding he refused to make a decree for sale of the

mortgaged property in 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 Subor-

dinate 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 the satis-

faction of the debt, which attracted the operation of sec-

tion 20 of the Indian Limitation Act. Against this decision

an appeal was taken by the defendants mortgagors to 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 defend-

ants 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

suit, as one for personal relief against the debtors, was

barred on the expiry of 6 years from the date for repayment

mentioned in the bond and the part payments relied upon by

the plaintiffs in their plaint were ineffectual for

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the purpose of extending the period of limitation under

section 20 of the Indian Limitation Act- The High Court on

hearing the appeal came to the conclusion that the bond in

suit was duly attested and was effective and enforceable as

a mortgage bond, and that the view taken by the trial court

on the question of attestation could not be sustained on the

evidence on the record. As the bond could be treated as a

mortgage bond, the suit, as one for enforcement of a mort-

gage, was, in the opinion of the learned Judges, quite

within time, and it was not necessary in these circumstances

to call in aid the provisions of section 20 of the Limita-

tion Act for the purpose of extending the period of

limitation. The learned Judges held, however, that as the

plaintiffs had not preferred any appeal or cross objection

attacking that part of the judgment of the trial Judge which

dismissed their claim for a sale of the mortgaged property,

they were unable to pass a mortgage decree in their favour.

The result was that the decree made by the trial Judge was

affirmed. It is the propriety of this decision that has

been challenged before us in this appeal.

Mr. De, who appeared in support of the appeal, has

contended in the first place that even if the High Court was

right in holding that the bond in suit was effective as a

mortgage bond and the suit could be treated as one for

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enforcement of a mortgage, no decree for money could be

passed against the defendants personally, unless the suit

was instituted within the period prescribed by Article 116

of the Limitation Act. The High Court, it is said, over-

looked this aspect of the case altogether and was wrong in

not considering the question of limitation. It is argued by

the learned Counsel that on the point of limitation the

decision of the Subordinate Judge was wrong, and as the

payments relied upon by the plaintiffs had not been acknowl-

edged in the manner contemplated by section 20 of the Limi-

tation Act, no extension of time was permissible under the

provisions of that section. Mr. De further contends that on

the question of attestation, the correct finding was that

arrived at by the Subordinate Judge and it

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is impossible to hold on the evidence that has been adduced

in this case that the bond was legally s, attested.

Mr. Sinha, appearing on behalf of the plaintiffs re-

spondents, has, on the other hand, attempted not only to

repel the contentions advanced on behalf of the appellants;

he has further argued that even if no appeal or cross-objec-

tion 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 on the question of attestation, to make a mort-

gage 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 mort-

gage decree in favour of his clients on the basis of the

findings of the High Court.

We will first take up the question of limitation, and to

appreciate the nature of the controversy that centres round

this point, it will be convenient to advert to a few rele-

vant dates. The mortgage bond is dated the 8th of April,

1927, but it is no longer disputed that the executants put

their signatures to the document on the 12th of April fol-

lowing, and admittedly it was registered on the latter date.

Whether the attesting witnesses signed the deed on the 12th

of April or on the 8th when the document was actually

scribed, is a debatable point upon which the courts below

have divergent views and we will discuss this matter later

on. The due date, as given in the mortgage, is the 6th of

March, 1928. The suit was instituted on 4th of March, 1940,

and if it could be treated as a mortgage suit pure and

simple for enforcement of a charge on immovable property,

the suit was obviously within time and no question of limi-

tation would arise. If, however, the attestation is held to

be defective and the mortgagee seeks to recover the debt

personally from the mortgagor on the basis of a covenant to

pay, such suit, if the bond is registered, would be governed

by Article 116 of the Limitation

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Act and the period of limitation would be 6 years from the

date fixed for repayment unless it could be extended under

some other provision of the Limitation Act. The mere fact

that in such cases the plaintiff chooses to frame his suit

as one for enforcement of a charge, would not give him an

extended period of limitation for obtaining a personal

decree against the debtor. The position, therefore, is that

if the bond in the present case cannot be treated as a

mortgage bond and the only relief which the plaintiffs can

claim is one for recovery of money against the defendants

personally, the suit must be deemed to be barred, as it was

instituted beyond 6 years from the due date of payment

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unless limitation is saved by reason of the payments under

section 20 of the Limitation Act. This leads us to enquire

as to whether the trial Judge was right in holding that the

payments made by the defendants satisfied the requirements

of section 20 of the Limitation Act and were hence available

to the plaintiffs for the purpose of extending the period of

limitation within which the suit should otherwise have been

brought.

The plaintiffs stated specifically in their plaint that

the defendants made eight payments in all, aggregating to a

sum of Rs. 780-9-0, in part satisfaction of the debt, since

the execution of the mortgage bond. The first payment which

was of a sum of Rs. 300 was made on 21st January, 1928, and

this was before the expiry of the due date mentioned in the

bond. The second payment was of Rs. 75 and was made on the

5th of June, 1929. The third payment is dated 8th of March,

193l, 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

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obtaining a money decree against the defendants personally.

The contention of the appellants is that as San there is no

acknowledgement in the handwriting of, or in any writing

signed by, the payer 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.

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 :--

20(1). "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 authorized in this behalf,

or where part of the principal of a debt is, before the

expiration of the prescribed period, paid by the debtor or

by his agent duly authorized in this behalf,

a fresh period of limitation shall be computed from the

time when the payment was made:

Provided that, save in the case of a payment of interest

made before the 1st day of January, 1928, an acknowledgment

of the payment appears in the handwriting of, or in a writ-

ing signed by, the person making the payment."

Admittedly in the case before us, none of the payments

specified above were endorsed on the bond itself and there

was no acknowledgment either in the handwriting of, or

signed by, the debtors prior to the institution of the suit.

What the Subordinate Judge relied upon, is the admission

contained in paragraph 15 of the written statement filed on

behalf of defendants 1 to 3 in the present suit where these

defendants admitted not only that the payments specified in

the plaint were actually made on the respective dates but

asserted that there were other payments besides these, which

reduced the debt still further and for which the plaintiffs'

did not give any credit to the defendants. In the opinion of

the Subordinate Judge as the written

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statement was signed by these defendants, it would fulfil

all the requirements of a signed acknowledgment as is con-

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templated by the proviso to section 20. The short point for

our consideration is: whether the view taken by the Subordi-

nate Judge is correct ?

It would be clear, we think, from the language of section

20 of the Limitation Act that to attract its operation two

conditions are essential: first, the payment must be made

within the prescribed period of limitation and secondly, it

must be acknowledged by some form of writing either in the

handwriting of the payer himself or signed by him. We agree

with the Subordinate Judge that it is the payment which

really extends the period of limitation under section 20 of

the Limitarian Act; but the payment has got to be proved in

a particular way and for reasons of policy the legislature

insists on a written or signed acknowledgment as. the only

proof of payment and excludes oral testimony. Unless, there-

fore, there is acknowledgment in the required form, the

payment by itself is of no avail. The Subordinate Judge,

however, is right in holding that while the. section re-

quires 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 words

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(1).

But while it is not necessary that the written acknowl-

edgment 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 date on

which the plaint is filed and the allegations made therein.

The legislature has expressly

(1) See Md. Moizuddin v. Nalini Bala (A.I.R. 1937 Cal.

284: I.L.R. (1937) 2 Cal. 137), 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 Nagpur

117), Viswanath v. Mahadeo (57 Bom. 453).

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declared in section 3 of the Limitation Act that whether

defence of limitation be pleaded or not, the court is bound

to dismiss a suit which is brought after the period provided

therefore in the first schedule to the Limitation Act. If

the plaintiff's right of action is apparently barred under

the statute of limitation, Order 7, Rule 6, of the Civil

Procedure Code makes it his duty to state specifically in

the plaint the grounds of exemption allowed by the Limita-

tion Act upon which he relies to exclude its operation; and

if the plaintiff has got to allege in his plaint the facts

which entitle him, to exemption, obviously these facts must

be in existence at or before the time when the plaint is

filed; facts which come into existence after the filing of

the plaint cannot be called in aid to revive a right of

action which was dead at the date of the suit. To claim

exemption under section 20 of the Limitation Act the plain-

tiff must. be in a position to allege and prove not only

that there was payment of interest on a debt or part payment

of the principal, but that such payment had been acknowl-

edged in writing in the manner contemplated by that section.

The ground of exemption is not complete without this second

element, and unless both these elements are proved to exist

at the date of the filing of the plaint the suit would be

held to be time-barred. In the plaint as it was originally

filed in this case, the prayer was only for a mortgage

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decree in the usual form. After the hearing was closed, the

plaintiffs, it seems, were apprehensive that the court

might not hold the bond to be properly attested. In

these circumstances. they prayed for an amendment of the

plaint which was allowed by the court. By the amended

plaint the cause of action was stated to arise from the

different payments made on different dates as were stated in

paragraph 7 of the plaint and at the end of paragraph 7 the

following words were added :-

"The suit is saved from limitation so far as the person-

al remedy is concerned and the payments were made by the

defendants on different dates as mentioned in Schedule A

below."

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These amendments must be deemed in the eye of law to be a

part of the original plaint, and obviously there is

neither any averment nor proof that any of these payments

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.

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 attest-

ed; 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 ques-

tion of attestation is a correct and proper finding on the

evidence adduced in this case ?

(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 ?

As regards the first point, the evidence shows that the

mortgage bond was written and engrossed at the plaintiffs'

house at village Chakla Maulanagur and the date which the

document bears is 21st Chaitra 1334 Fasli corresponding to

8th April, 1027. Obviously, it was on that date the document

was written. There are four attesting witnesses whose names

appear in the deed, to wit, Sunderlal, Matukdhari Prasad,

Dwarka Prasad and Nanak Prasad the last named person being

also the scribe of the document --and all of them were

residents of Chakla Maulanagur which is the place of resi-

dence of the mortgagees. The mortgagors, on the other hand,

are inhabitants of a different village, namely, Chand-

pur. Nanak Chand, the scribe, was not alive

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at the time when the suit came up for hearing and out of the

remaining three witnesses two were examined on behalf of

the plaintiffs. They are Sunderlal and Matukdhari Prasad.

Sunderlal, who is P.W. 1, states when cross-examined on

behalf of some of the defendants: "I signed the bond at

the plaintiffs' house, as did the attesting witnesses." The

attestation of the bond was on the same day that it was

written." The other attesting witness, Matukdhari Prasad,

during cross-examination said as follows: "The bond was

written, signed by the executants and attested by the wit-

nesses on the same date."

The document shows that all the three executants put

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their signatures to it on 12th of April, 1927, and on the

same day it was presented for registration before the Regis-

tering Officer at Katihar. Katihar is at some distance from

the plaintiffs' village and a part of the journey has to be

covered by train. The evidence of the two attesting wit-

nesses makes it clear that the document was attested on the

same day as it was written. As the document was written on

the 8th but actually executed on the 12th, the Subordinate

Judge was of opinion that the attesting witnesses must have

signed the deed before it was executed land this was no

attestation in the eye of law. The High Court, on the other

hand, has held that the vernacular equivalent of the word

"written" as used by the attesting witnesses might mean

execution as well and the Subordinate Judge, who was not

familiar with the language of the witnesses might have

committed the mistake of taking the word "written" in the

sense of mere engrossing or scribing of the deed, although

the word could be interpreted 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. Accord-

ing to him, the bond was written, executed and attested on

the same day. But

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126

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 crossexamined. 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 circum-

stances and probabilities of the case. The document was

certainly taken to Katihar on the 12th of April, 1927, and

the executants were all present there on that day and admit-

ted execution of the document by putting their signatures

before the Registering Officer. The signatures by way of

execution of the document also bear the same date. From

these circumstances it would be natural to presume that the

execution took place at Katihar some time before the docu-

ment was presented for registration. On the other hand, it

is nobody's case that any of the attesting witnesses had

gone to Katihar; they belong to the plaintiffs' village and

were present at the time when the document was written. It

was quite natural in these circumstances that they would

sign the deed at the plaintiffs' place and on the date when

it was written. It might have been in contemplation of the

parties that the executants should also sign the document on

the same day but it seems that somehow or other that did not

happen. We are not unmindful of the fact that no specific

defence was taken by defendants 1 and 3 pleading want of

attestation of this document and defendant No. 1 also did

not say anything on the point in his examination in chief.

But the point was definitely taken in the written statement

not only of the minor defendants but also of defendants 4

and 9, who are the sons of Bharath and defendant No. 2

respectively and

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they were no less interested in contesting the suit than

defendants 1 to 3. Moreover, a specific issue on the,

question of attestation was framed by the learned Subordi-

nate Judge. On the Whole, our conclusion is that the view

taken on this point by the Subordinate Judge is right and it

is difficult to hold on the internal evidence furnished by

the contents of the document itself taken along with the

statements of witnesses that the bond was attested in due

and proper manner. This being our view, the other question

as to whether we should pass a mortgage decree in this case

in exercise of our powers under Order 41, Rule 33, Civil

Procedure Code, in spite of the fact that the plaintiffs did

not challenge the decision of the trial court by way of

appeal or cross-objection does not require to be consid-

ered

The result is that the appeal is allowed, the judgments and

decrees of both the courts below are set aside and the

plaintiffs' suit dismissed. Having regard to the facts and

circumstances of this case, we would direct that each party

would bear its own costs in all the courts.

Appeal allowed.

Agent for the appellant:I. N. Shroff.

Agent for the respondents: R.C. Prasad.