Judgement

Appeal (No. 63 of 1931) from a decree of the Chief Court of Oudh (September 23, 1929) affirming a decree of the District Judge of Lucknow (December 21, 1928), which affirmed a decree of the Subordinate Judge dismissing the appellants suit.

The suit was brought on February 28, 1928, by the appellant as mortgagee to recover the money due under a mortgage executed by one Bikram Singh on July 26, 1912. The respondents were the widow of Bikram Singh and subsequent transferees of the mortgaged property.

The mortgage was for a period of six years, but contained a clause (set out in the judgment of the Judicial Committee) by which, in case of default, the mortgagee was to have power, 3 before the expiration of the stipulated period, to realize the principal and interest by a sale of the mortgage property. Default in payment of interest had been made in the first year; it was stated that no interest had ever been paid.

The sole question arising upon the appeal was whether the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 132. That article provides that a suit to enforce payment of money charged upon immovable property shall be brought within twelve years of the date " when the money becomes payable."

The Chief Court, affirming the lower Courts, held that having regard to the clause above referred to the money became payable upon the first default in payment of the interest, and that accordingly the suit was barred. The learned judges in so holding followed decisions of the Chief Court, which had approved and adopted the decisions of the Full Bench of the Allahabad High Court in Gaya Din v. Jhumman Lal (( 1915) I. L. R. 37 A. 400.) and Shib Dayal v. Meharban. (( 1922) I. L. R. 45 A. 27.) They adopted the view of the Chief Court in Gaura v. Ram Charan (( 1927) 4 Oudh W. N. 207.), that as the judgment of the Judicial Committee in Pancham v. Ansar Husain (( 1926) L. R. 53 I. A. 187.) had not overruled the Allahabad decisions the Chief Court should continue to follow its own decisions to the same effect.

1932. April 11, 12. Parikh for the appellant.

The respondents did not appear.

The argument appears sufficiently from the judgment of the Board. In addition to cases there mentioned reference was made to Ham Chand v. Bank of Upper India (( 1921) I. L. R. 3 Lah. 59, 65.); Velliappa Chettiar v. Venkatasubbarayulu Naidu (( 1925) I. L. R. 49 M. 403.) ; Ramsekhar Prasad Singh v. Mathura Lal (( 1925) I. L. R. 4 P. 820.) ; Ram Kuer v. Patraj Kuer (( 1928) I. L. R. 3 Luck . 439.); and Nilkanth Balwant v. Narasinh Bharati. (( 1930) L. R. 57 I. A. 194, 205, 206)

June 21. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The only question in this appeal is as to the date upon which the principal money became due under a mortgage of certain immovable property in the Lucknow District. Upon this hangs an important question of limitation, and the issue of the appeal.

The mortgage is dated July 26, 1912, and purports to be for six years from that date. Apart, therefore, from the provisions of a particular clause in the deed, to be presently referred to, the mortgage money would have become due on July 26, 1918, and under art. 132 of the first schedule to the Limitation Act, 1908, the mortgagee would have a further twelve years in which to bring his suit. The article runs as follows —

Description of suit. Period of limitation Time from which period

begins run.

132.—To enforce payment of Twelve years When the money sued for

money charged upon becomes due.

immovable property.

The appellant is the mortgagee. He brought a suit praying for a mortgage decree in the usual form on February 28, 1928, i.e., within twelve years from July 26, 1918. He joined as defendants the widow of the mortgagor, who was then dead, and certain puisne encumbrancers, who alone defended the suit. They are respondents to this appeal, but have not been represented before the Board.

The main defence was limitation. The Subordinate Judge of L