Judgement

Consolidated Appeals (Nos. 30-34 of 1936) from five decrees of the High Court (May 14, 1936) which modified five decrees of the Subordinate Judge of Meerut (December 22, 1928) by excluding from the decrees passed by the Subordinate Judge in suits for sale under five mortgages certain of the mortgaged properties which were the subject of a private sale agreement in favour of respondent No.

Law. Rep. 69 Ind. App. 130 ( 1941- 1942) Bank of Upper India, Limited V. Robert Hercules Skinner

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1, R. H. Skinner, on May 30, 1914. The suits were brought by the appellants, the Bank of Upper India, Ld., to enforce simple mortgages executed on various dates between 1904 and 1912 in favour of the appellants by two or more of the respondents vendors.

The question in this appeal was whether acknowledgments of the respective mortgage debts made by the mortgagors after the date of the sale agreement of May 30, 1914, operated by virtue of s. 19 of the Indian Limitation Act to extend the time limited by art. 132 of the First Schedule to the Limitation Act for the bringing of suits by the appellants to enforce their mortgages against the subjects of the sale agreement in the hands of the respondents. Respondent No. 2, James A. R. Skinner, was the son of respondent No. 1.

The following facts are taken substantially from the judgment of the Judicial Committee At various dates between 1904 and 1912 four brothers, cousins of the respondents, executed five mortgages of properties in Meerut, United Provinces, and in Hissar, Punjab. In one the mortgagors were the four brothers, and in four only two of the brothers, disposing of their two-fifth shares in the properties. Two of the mortgages were expressed to be cash credit loans payable after three months notice, the others were for periods of five and two years respectively. The last mortgage was given on November 21, 1912. On May 30, 1914, the four brothers and a sister, who between them at that date possessed the entire property in the lands in question subject to the mortgages, sold to the respondent, R. H. Skinner, certain of the mortgaged lands, on the terms mentioned in the deed of that date. Shortly after the execution of the document R. H. Skinner was given possession of the properties purchased, and obtained mutation into his name. In 1924 the respondent R. H. Skinner bought under a money decree obtained by another banking company against one of the mortgagors a share in some of the mortgaged property situate in the United Provinces.

By the terms of the agreement of May 30, 1914, it seemed to have been contemplated that R. H. Skinner would pay the agreed price to the plaintiff bank in reduction of the mortgages. He did not, however, come to any agreement with the bank, and in 1917 the vendors commenced a suit against R.

H. Skinner seeking specific performance of the agreement.- That was eventually decreed under a judgment of the Privy Council which gave relief to the defendant if within six months he made the necessary payments to the bank. That he did not do, and the decree accordingly remained unconditionally in force.

No interest was paid on the mortgages after May, 1914, but the mortgagors from time to time made written acknowledgments to the bank. The latest was given in 1916, and the present suits were instituted on June 24, 1927. The plaint set out the agreement of sale of May 30, 1914, and that mutation had been made in favour of respondent No. 1, and that he held possession of the properties in question, and reliance was placed on the acknowledgments as saving limitation. The respondents by their written statements alleged, inter alia, that there had been no acknowledgment valid and binding as against them, and that the suits were therefore barred by time.

The Subordinate Judge held that the appellants were entitled to decrees for sale on their mortgages, but on appeal the High Court (Harries and Rachhpal Singh JJ.) were of opinion that the acknowledgments subsequent to the da