Saving of bar of limitation to execution.

Raghava Rao, J.-The question in these Civil Miscellaneous Appeals is whether the execution petition out of which this appeal arises is barred by time. The Court below has held that it is.

The appellant is a mortgagee decree-holder, who is in the present proceeding seeking to execute the decree against the properties in Schedule D-1 to the plaint in the hands of the contesting respondent, the 22nd respondent, who came to be impleaded before decree as the legal representative of the 5th defendant in the suit. The 15th defendant is the purchaser of the properties subsequent to the morrgage as well as the charge. The present execution petition against the 5th defendant is one presented admittedly more than three years from the date of the order on the last execution petition, namely, 31st January, 1941.

It was contended for the decree-holder in the Court below that the present execution petition stood saved from the bar of limitation by a letter of acknowledgment passed by the 15th defendant Ex. P-1 dated 5th January, 1944. The contention was rejected by the Court below on the ground that Ex. P-1 was not a bona fide, but collusive document. The finding of collusion and fraud recorded by the Court below cannot, in our opinion, be accepted. It is not based upon legal testimony, but only upon suspicion. There is no evidence on the side of the contesting respondent at all, the evidence oral and documentary being all on the side of the appellant.

But then, this does not dispose of the appeal in favour of the appellant. The respondent seeks to support the order of the court below on the ground that no acknowledgment made by the 15th defendant, the purchaser of the property subsequent to the charge, can be binding on the charge-holder or her legal representative. The contention is that under section 19 of the Indian Limitation Act, the 5th defendant or her legal representative, the 22nd respondent, cannot be treated as a person deriving title or liability from the 15th defendant long prior to whose purchase the charge in favour of the 5th defendant had come into existence. The contention is, in our opinion, borne out by the ruling of a Full Bench of this Court in Pavayi v. Palanivela1, to which our attention has been drawn by the learned counsel for the respondent and must, therefore, be accepted whatever the view of this court prior to that ruling.

Mr. Srinivasan for the appellant drew our attention to a good deal of prior authority-the cases in Lakshmanan Chetti v. Muthayya Chetti2, Muthu Chettiar v. Muthuswami Aiyngar3, and Narayana v. Venkataramanna4 which it is unnecessary to consider in view of the Full Bench ruling. The first paragraph, in the headnote to the Full Bench ruling is as follows:

“A mortgagor who has lost all interest in the mortgaged property cannot bind by an acknowledgment under section 19 or by a payment of principal or interest under section 20 of the Indian Limitation Act, 1908, the person on whom his interest has devolved, whether the devolution is of the whole of the mortgaged properties or only a part thereof. In order to be binding on the assignee, the acknowledgment or payment must be made before the person making it has parted with his interest in the property to the assignee.”

It is the second sentence of the first paragraph of the headnote that applies to the present case and applies adversely to the appellant.

Mr. Srinivasan for the appellant contends that what all is decided by this Full Bench ruling is that if the person making the acknowledgment has lost all interest in the mortgaged properties any acknowledgment by him will not be binding upon the person on whom an interest in the mortgaged properties either in whole or in part has devolved already. In our opinion, this is not the way to read the head note to the judgment, which certainly embodies two distinct and different propositions:-

(1) that any acknowledgment or payment by the person making it must be of a person who is interested in the prop