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1924 DIGILAW 292 (ALL)

Krishna Misir v. Dwarka Pandey

1924-05-09

body1924
JUDGMENT Neave, J. - This is a defendant's appeal arising oat of a suit for redemption. On the 21st January, 1852, plaintiffs' ancestor Mat. Gaura Kuar mortgaged a one anna 13 gandas share to three persons : Behari Pande, Durga Pande and Bisheshar Pande. The mortgagees were put in possession. Later on one of them, Behari, realised his share of the mortgage money by sale of 13 gandas. The remaining two mortgagees were thus left in possession of one anna. 2. On the 11th June, 1892, the plaintiffs' ancestor sold 16 1/2 gandas out of the remaining one anna to the defendants' ancestor, who on the 20th December, 1911, brought a suit for redemption of the whole one anna. He pleaded that he was owner under the sale-deed of a 16 1/2 ganda share and was in adverse possession of the remaining 3 1/2 gandas. The suit was decreed and on payment of the decretal amount the defendants got possession of the whole one anna. 3. On the 20th January, 1921, the plaintiffs brought the present suit for redemption of gandas. Admittedly more than 60 years have elapsed since the original mortgage of 1852, but it has been found that the defendant's plaint in his suit of 1911 contains an acknowledgment of the present plaintiff's right to redeem, which operates u/s 19 of the Limitation Act to give a fresh starting point of limitation, and that the present suit, which has been brought within 12 years of the filing of that plaint, is within time. 4. The only question for decision in this appeal is whether the defendants' plaint in their suit of 1911 contains such an acknowledgment as will give a fresh point of limitation for the present suit. 5. The learned Subordinate Judge has relied, on the ruling of this Court in Baleshwar v. Ram Deo 36 All. 408=24 I.C. 104=12 A.L.J. 674, in which it was held that in a suit for redemption of a mortgage a statement in the plaint made by some of the mortgagors that certain other mortgagors, who did not join in that suit as plaintiff, had a right to redeem the- mortgage was as admission in respect of the latter a right with regard to the mortgaged property, and was an acknowledgment within the meaning of section 19 of the Limitation Act. 6. 6. On the other side a Full Bench decision, Ashfaq Ahmad v. Wazi Ali (2) is cited in which it was bold that where one of several co-mortgagors-redeems the whole mortgage, he thereby puts himself into the position of the mortgagee as regards that portion of the mortgaged property which represents the interest of the other co-mortgagors and the period of limitation applicable to a suit for redemption brought by the other co-mortgagors is provided for in Article 143 of Schedule 1 of the Limitation Act. Such period begins to run from the date when the original mortgage was redeemable and not from the date of its redemption by the aforesaid co-mortgagors. 7. It is contended that in a suit for redemption the names of any co-mortgagors who did not join in the suit must be included in the array of defendants and mention made in the plaint of the right to redeem. There must, therefore, have been such a reference so the co-mortgagors is the suit oat of which the appeal arose in 14 All land the effect of the decision in 12 A.L.J. 674 is practically to overrule the Full Bench decision of 14 All. 1; There is nothing to show whether the plaint in that case contained any of the names of the co-mortgagors who had a right to redeem, and the point was certainly not taken in the appeal. 8. Following the ruling in 12 A.L.J. 674, I hold that the admission in the redemption suit brought by the defendants in 1911, that Bhagwan Pande had a right to redeem, amounts to an acknowledgment of the liability of the defendants themselves to be redeemed in the event of their succeeding in their suit, and that this gives rise to a fresh period of limitation. The appeal, therefore, fails and is dismissed with costs.