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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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117 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      16 118 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 119 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 120 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 121 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 122 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). 123 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." 124 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  125 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               17 126 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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127 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.