The main legal point established in the judgment is the interpretation and application of Sections 20 and 21(2) of the Limitation Act in the context of mortgage disputes.

Varadachariar, J.

1. This is an appeal by the ninth defendant, a puisne mortgagee, against the decree for sale passed in a prior mortgagees suit. The prior mortgagee had two mortgages in his favour, Ex. A, a usufructuary mortgage of 1st September, 1891 and Ex. B, a simple mortgage of 4th September, 1897. In respect of Ex. A, the appellant contends that on its true construction, the mortgagee is bound to account for all the income from the properties of which he was put in possession, subject to a deduction of interest at 9 per cent, per annum on the mortgage amount and one or two other items of charges mentioned in the document. He insists that if accounts are taken on this footing it would be found that the mortgagee has realised the whole amount due to him under the mortgages. With reference to Ex. B, the appellant raises a plea of limitation. Incidentally, his learned Counsel also suggested the possibility of a claim for subrogation in respect of a fraction of the amount included in the mortgage in favour of the appellant, but he realised that in view of certain circumstances this claim could not be usefully pressed. It is therefore unnecessary to say anything further about this. The only other matter raised in the appeal relates to the direction of the lower Court for payment of costs by the ninth defendant and, the other members of his family.

2. On the first point, we are unable to accede to the contention of the appellant. Though incidentally there is a reference to interest at 9 per cent, per annum in Ex. A, the scheme of Ex. A is not to make the mortgage accountable for the realisations from the mortgage property except to a very limited extent.

[His Lordship dealt with the terms and effect of the document and concluded.]

3. This contention therefore fails.

4. With regard to the plea of limitation in regard to Ex. B, the question depends upon the extent to which a part-payment made on 25th April, 1912, is available to save limitation. The mortgage bond had been executed by two brothers Chinnayya-dora and Bhimandora, but this part-payment was made by the former alone and the endorsement relating thereto is signed only by him. The appellant contends that on a proper construction of Sections 20 and 21, Clause (2) of the Limitation Act, this part-payment can avail to save from the bar of limitation only the liability of Chinnayyadoras share and not that of Bhiman-doras share. The argument was put on two grounds; one, that Section 20, contemplates that, where there is a plurality of persons liable in respect of a debt, all of them should join in making a part-payment; alternatively, it was contended, that, where they are liable as joint promissors, a payment by one of them alone will not avail against the others because of the express provisions of Section 21(2). The first contention is scarcely sustainable see Velayudam Pillai v. Vaithialingam Pillai (1912) 24 M.L.J. 66. In view of numerous cases decided in recent years in the various High Courts in India, the learned Advocate-General also admitted that, as held in the English decisions cf. Bolding v. Lane (1863) 1 De G.J. & S. 122 : 46 E.R. 47 Chinnery v. Evans (1864) 11 H.L.C. 115 : 11 E.R. 1274 and Lewin v. Wilson (1886) 11 A.C. 639 there is a difference between the effect of an acknowledgment and that of a part-payment and that a part-payment can avail not merely against the person making the payment or those deriving title under him subsequent to such payment but even against other persons liable in respect of the same debt. Even in respect of acknowledgments, this Court has recently held in Muthu Chettiyar v. Muthuswami Aiyangar I.L.R.(1932)Mad. 758 : 63 M.L.J. 111 that an acknowledgment will also avail to save limitation as against a person to whom the mortgagor making the acknowledgment has transferred the mortgage property prior to the date of the acknowledgment. The learned Advocate-General therefore pressed his contention mainly with reference to Section 21(