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M.PATANJALI SASTRI, S.R.DASS, VIVIAN BOSE, B.K.MUKHERJEE
Sant Lal Mahton – Appellant
Versus
Kamla Prasad – Respondent
Key Points: - The bond’s attestation and whether it was properly executed determine if the suit is for enforcement of a mortgage or for personal decree (!) . - The High Court held the bond was properly attested and that a mortgage decree could be passed, but the Supreme Court ultimately found against it based on attestation and other factors, dismissing the suit (!) (!) (!) . - Section 20, Limitation Act requires a written or signed acknowledgment of payment for extending the limitation period; mere part payments without such acknowledgment do not extend time, though acknowledgment can occur after the period but must exist before suit is filed (!) (!) (!) (!) . - For extension under S. 20, the acknowledgment must be in writing and signed or in the payer’s handwriting; absence defeats extension (!) (!) . - The suit filed on 4-3-1940 was deemed time-barred if treated as a personal decree; the amended plaint attempting to rely on payments did not provide proper written acknowledgments before filing (!) (!) . - The Court considered whether a mortgage decree could be passed under O. 41, R. 33 CPC; the appellate court exercised discretion in the absence of appeal/cross-objection but ultimately the judgment was to dismiss (!) (!) . - The learned judges concluded the appeal is allowed and the judgments of both Courts below are set aside and the suit dismissed; each party bears its own costs (!) .
Judgment
B. K. Mukherjea J.- This appeal, which was originally taken to the Judicial Committee, on special leave, granted by an Order-in-Council dated 2-8-1946, now stands transferred to this Court by reason of the abolition of the jurisdiction of the Privy Council. It is directed against a judgment and decree of a Division Bench of the Patna High Court dated 17-3-1944, affirming, on appeal, a decision of the Subordinate Judge of Purnea dated 27-2-1942.
2. 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 mortgaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence 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 Subordinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the b
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