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2010 Supreme(Ker) 267

High Court of Kerala
THE HONOURABLE MR. JUSTICE P. BHAVADASAN
Kanakamma & Others
Versus
Banerjee Babu & Others
S.A.No.717 of 1998
Decided On : 06-04-2010

Advocates Appeared:
For the Appellant :Bechu Kurian Thomas, Advocate.
For the Respondent:C. Anil Kumar, P.R. Venketesh, Advocates.

Headnote:

Limitation Act, 1963 - Section 18 - Transfer of Property Act, 1882 - Section 60 - Suit for redemption - Execution of deed - Sole question is one regarding limitation - Both the courts have concurrently found that if the period is to be computed from date of Ext.A2, suit is clearly barred by limitation - Whether the courts below were justified in their approach to the question of limitation - In the plaint it is specifically averred that plaintiffs are entitled to compute 30 years period from 9.4.1962, which is date of execution of Ext.A3 purakkadam deed. It is therefore contended that the suit is not barred by limitation - Held, Acknowledgment of the liability by the mortgagor enables the mortgagee to get an extended period to a suit for foreclosure, but that cannot extend the period of limitation for a suit for redemption - There is no case for the plaintiffs that any document acknowledging the mortgage and the right to redeem has been executed by the mortgagee - They rely on Exts.A2 and A3, which are documents executed by the mortgagors themselves - They cannot take advantage of their own acknowledgment - Judgment and decree of the court below are set aside and the suit stands dismissed - Appeal Allowed

Judgment :

The defendants who suffered a decree for redemption are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the court below.

2. Since the solitary question raised is regarding limitation, the facts absolutely necessary for the disposal of this Second Appeal are being referred to.

3. The suit was one for redemption. It is not in dispute that by Annexure A2 document dated 8.2.1958 the property involved in the suit was mortgaged to the predecessor in interest of the defendants. Later a purakkadam deed dated 9.4.1962 was also executed. These facts are not disputed. The suit was laid for redemption. Originally the defendants entered appearance and filed a written statement raising several contentions. The main contention was one pertaining to limitation.

4. Before the court below, issues were raised and evidence was adduced P.W.1 was examined on the side of the plaintiffs and marked Exts.A1 to A3. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B1(f) marked. The Trail Court found all the issues in favour of the plaintiffs and passed a preliminary decree for redemption. The Appellate Court confirmed the same.

5. The young learned counsel appearing for the appellants, in his well prepared and well presented argument, raised only one question for consideration, that is, the suit was barred by limitation and the findings of the court below that it is not so is not legally sustainable. According to learned counsel, both the courts have erred in law in coming to the conclusion that the period of limitation could be computed from the date of Ext.A3 dated 9.4.1962, which is the purakkadom deed. Learned counsel emphasized that that was a document executed by the mortgagor and that could not save the limitation in the suit for redemption as far as the mortgagor is concerned. Going by S.18 of the Limitation Act, according to learned counsel, it was the mortgagee who had to acknowledge the debt. It was not the mortgagor who had to acknowledge. This vital aspect, according to learned counsel, has been omitted to be noticed and that has resulted in the illegal findings.

6. As already noticed, the sole question is one regarding limitation. Both the courts have concurrently found that if the period is to be computed from the date of Ext.A2, i.e., 8.2.1958, the suit is clearly barred by limitation. If on the other hand Ext.A3 dated 9.4.1962 is treated as an acknowledgment of the debt covered by Ext.A2, the plea in the suit is within time. The question is whether the courts below were justified in their approach to the question of limitation. In the plaint it is specifically averred that the plaintiffs are entitled to compute 30 years period from 9.4.1962, which is the date of execution of Ext.A3 purakkadam deed. It is therefore contended that the suit is not barred by limitation. This is reiterated by P.W.I in his evidence; which reads as follows: Malayalam

7. Going by Art.61(a) of the Limitation Act the period of limitation is 30 years from the date on which right to redeem or to recover possession accrues. If as a matter of fact the period is to be computed from the date of Ext.A3, that is, 9.4.1962, then even according to learned counsel for the appellants, the suit is within time. However learned counsel, as already stated, placed emphasize on S.18 of the Limitation Act and also the decisions reported in Mohammad Khan v. Mohammad Salim Khan (AIR 1951 All.392) and Prabhakaran v. M. Azhagiri Piliai (AIR 2006 SC 1567) and contended that the mortgagor cannot take the aid of Ext.A3 to have the period extended.

8. Ss. 18 and 19 of the Limitation Act deal with acknowledgement. Ss.18 and 19 read as follows:

“18. Effect of acknowledgment in writing.- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom










































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