Period of limitation for suit for refund of money advanced.

This petition is directed against the judgment and decree of the District Munsif, Pattukkottai in S. C. S. No. 699 of 1966.

The respondent filed the suit in question for recovery of a sum of Rs. 400 (together with Rs. 88 interest on the said amount) advanced by him under a mortgage bond executed by the petitioner herein (defendant) in his favour on 12th June, 1962 for a sum of Rs. 750 on the allegation that subsequently the petitioner refused to have the mortgage registered. As per the mortgage deed, the balance of Rs. 350 had to be paid by the respondent before the Sub-Registrar at the time of registration. The Court had decreed the suit accepting the respondent’s contention that the suit though filed on 13th March, 1966 three years after the date of the mortgage bond, is saved from the bar of limitation, as the mortgage money of Rs. 750 is repayable in twelve months from the date of the bond.

The only question which is pressed by the learned Counsel for the petitioner in the course of his arguments in the revision is that the suit is barred by limitation.

The mortgage bond is not registered and a personal convenant contained in the bond shows that the petitioner had undertaken to pay the sum of Rs. 750 secured by the bond together with interest at 6 per cent in 12 months from the date of the bond. The document further states, that in default of payment, the sum is payable with compound interest and can be recovered from the mortgage property.

It is well settled that, where a mortgage deed fails for want of registration or attestation or for any other purpose, it is admissible as evidence of a personal covenant contained therein for payment of the amount (vide Pulaka veetil Mythalakulangara Kunhu Moidu v. Thiruthipalli Madhav Menon1 and Kesavamatam Koda Nayakamma v. Edara Venkayya2. Nor can it be disputed that where time limit is fixed for the repayment of money in a simple money bond, limitation will start only from that date.

The trial Court overruled the plea of limitation and decreed the suit on the basis of the judgment of the Rajasthan High Court in Karon Raj v. Chandilal3. In that case the mortgage failed and the suit was decreed for the amount secured by the mort- gage on the basis of a personal covenant contained in the document, though the suit was laid more than three years from the date of advance. In that document there was a stipulation that the mortgagor would be able to redeem the property only on paying the money after a period of four years in one lump sum. The learned judges overruled the contention that the personal covenant was available only if the mortgage turned out to be a good one and not when it failed and have observed that whether the mortgage failed or not, the mortgagee had given four years time to the mortgagor to repay the money and that, having so accommodated the defendant he could not sue the latter before the expiry of four years. The cause of action in that suit for the repayment could not arise before four years.

The learned Counsel for the petitioner does not challenge the principles enumerated above ; but contends in the course of his arguments that the cause of action in the suit had arisen immediately after the petitioner (the mortgagor) refused to register the bond that in the absence of any evidence as to the date when the petitioner actually refused to register, it can be taken that the refusal was after the expiration of four months, the time prescribed for registration, that once the cause of action had started it cannot be normally stopped or suspended (under section 9 of the Indian Limitation Act) and that the present suit is barred as it had not been filed within three years after the time prescribed for registration of the bond had expired. The learned Counsel points out that there is a clear allegation in the plaint to the effect that the mortgage failed as the petitioner had refused to register the bond and that the petitioner was bound to return the sum of Rs. 400 paid a