Judgement

Appeal (No. 84 of 1924) from a decree of the High Court (April 12, 1921) affirming a decree of the Subordinate Judge of Allahabad (May 31, 1918).

The suit was brought by the appellants on February 21, 1917, to recover Rs. 34,000 under a mortgage bond dated February 21, 1893, by sale of the mortgaged property.

The sole question upon the appeal was whether the suit was barred by art. 132 of Sch. I. of the Indian Limitation Act, by which the period of limitation for a suit " to enforce payment of money charged upon immovable property" is twelve years from " the time when the money sued for becomes payable.”

The facts appear from the judgment of the Judicial Committee.

The mortgage deed, after stating the necessity for the loan, provided, so far as is material, as follows —" We have borrowed from Pancham Dube, .... a sum of Rs. 4000 of the Queens coin, half of which comes to Rs. 2000 of the said coin, carrying interest at rupee one per cent, per mensem stipulated to be repaid in twelve years. We covenant .... that we shall continue to pay towards the amount payable under this bond a sum of Rs. 500 per annum on account of principal and interest. It is stipulated that the amount paid shall first be set off against the interest, and the balance, if any, shall be credited towards the principal, and that the payment of the said amounts shall be endorsed on this document.....Moreover, for the satisfaction of the aforesaid creditor, we have hypothecated, pledged, and mortgaged in lieu of the amount payable under this bond the zamindari property owned and possessed by us, and the property held under mortgages by us, together with the mortgage money. .... If in any year we are unable to pay interest such interest shall be treated as principal and shall carry interest at the rate of rupee one per cent, per mensem." There then followed the clause, set out in the judgment, providing that on any default in payment of the Rs. 500 per annum, the mortgagee had power, without waiting for the expiry of the stipulated period, to institute a suit to enforce the mortgage for the entire principal and interest due.

The Subordinate Judge held that the suit was barred, and his judgment was affirmed by the High Court in a judgment which is reported at I. L. R.43 A. 596. The learned judges (Tudball and Sulaiman JJ.) followed Gay a Din v. Jhumman Lal. (I. L. R. 37 A. 400.)

1926. March 25, 26; May 1. Abdul Majid for the appellant. The present cause of action did not arise until February 21, 1905. The bond definitely fixed that date for repayment. The provision in the deed as to enforcement on default at an earlier date was inoperative. It was inconsistent with the term fixing the date, and that term being the earlier in the deed prevails. Even if that provision was not inoperative ab initio, it merely gave an option to the mortgagee, and as he did not proceed under it, it became inoperative. The mortgagee could waive his right to enforce upon a default Maharaja of Benares v. Nand Ram (( 1907) I. L. R. 29 A. 431.) ; Bir Narain Panda v. Darpa Narain Prodhan. (( 1892) I. L. R. 20 C. 74.) Upon the true construction of the deed the decisions in Gaya Din

v. Jhumman Lal (I. L. R. 37 A. 400.) and Shib Dayal v. Meharban (I. L. R. 45 A. 27.) do not apply. If they do, they were wrongly decided, for the reasons given by Banerji J. in his dissenting judgment in the first of the above cases. The decisions of the Madras High Court in Nettakaruppa Goundan v. Kumarasami Goundan (( 1899) I. L. R. 22 M. 20.), and Narni v. Ammani Amma (( 1916) I. L. R. 39

M. 981.), which are in conflict with the Allahabad decisions, were correct. The plaintiff did not abandon his contention that the cause of action did not arise until 1905, on the contrary that contention was pressed in both Courts. It was not contended in the lower Courts that the amendment of the plaint precluded the contention, and the Board does not readily give effect to a new contention upon appeal. Further, the