Judgement Appeal (No. 24 of 1943) from a decree of the High Court (April I, 1937), which affirmed a decree of the Subordinate Judge of Cawnpore (September 5, 1932) dismissing the plaintiffs (appellants) suit. The following facts are taken from the judgment of the judicial Committee the suit out of which the appeal arose was brought to recover a sum of Rs. 45,765-6-3 as a charge against the properties specified in the plaint in the circumstances mentioned below. The plaintiff died during the pendency of the appeal in the High Court, and by an order of the court, his son, the appellant before the Board, was brought on the record in his place. The sole question for decision was whether the suit was barred by limitation. The provision of the Indian Limitation Act (IX. of 1908) applicable was art. 132, which prescribed a period of " twelve years " for a suit " to enforce " payment of money charged upon immovable property," and time began to run " when the money sued for becomes due." The properties in the suit, numbering seven villages, belonged to one Musammat Baktawar Begum. On February 11, 1909, she mortgaged them for Rs. 5,000 to Syed Abid Husain. The money became payable by her on February 10, 1912. On July 27, 1910, she sold an eight annas share in four of the seven villages to Indar Prasad, the brother of the plaintiff, Jagmohan Das. By a partition of the joint family property of the plaintiffs family the plaintiff became the owner of a seven annas share in the said villages. On March 12, 1915, Musammat Baktawar Begum executed a mortgage of the remaining eight annas share of the four villages mentioned above, and of the three entire villages, in favour of Parsotam Das, respondent No. 1, and Jugal Kishore, the father of respondent No. 2. Syed Abid Husain instituted a suit on his mortgage of February 11, 1909, and obtained, on July 24, 1915, a decree for sale in respect of the properties mortgaged to him. To save them from being sold in execution of the decree, the plaintiff paid Abid Husain, on June 19, 1917, the decretal sum of Rs. 6,151-13-0. On June 22, 1915, Musammat Baktawar Begum had executed a mortgage of the above properties in favour of Ganga Dhar and Gobardhan Das. To save them from being sold in execution of the decree, the plaintiff paid Abid Husain, on June 19, 1917, the decretal sum of Rs. 6,151-13-0. On June 22, 1915, Musammat Baktawar Begum had executed a mortgage of the above properties in favour of Ganga Dhar and Gobardhan Das. The money under the bond became due on June 21, 1918. The plaintiff redeemed that mortgage by paying the mortgagees Rs. 4,552 on April 3, 1917. On that date Musammat Baktawar executed a further mortgage in favour of one Girdharilal, who was a benamidar for the plaintiff. The dispute between the parties to the suit now under appeal related to the two sums paid by the plaintiff to Abid Husain, and Ganga Dhar and Gobardhan Das, respectively. Jugal Kishore and Parsotam Das (father of respondent No. 2, and respondent No. 1) as subsequent mortgagees instituted in the court of the Subordinate Judge of Mohanlalgang, Lucknow, suit No. 13/39 of 1927, for foreclosure on the basis of the mortgage dated March 12, 1915, and three other deeds which had been executed by Musammat Baktawar Begum mortgaging the properties in the seven villages referred to above. Jagmohan Das, the plaintiff in the present suit, and his brother Indar Prasad, were defendants 3 and 4 in the said suit. Issue No. 3 in the suit was, " To what extent are " defendants Nos. 3 and 4 entitled to priority against the " deeds in suit ? " The Subordinate Judge decided the suit in favour of the plaintiffs. The judgment concluded as follows " The foreclosure will be subject to a declaration of the " following rights and charges of defendant No. 3 in respect of " which he has priority over the plaintiffs. "(A)------- “(B) A charge of Rs. 6,151-13-0 or for such lesser amount, " if any, as may be found due to defendant No. 3 in respect " of the deed dated April 3, 1917. "(C) A charge of Rs. 4,542, or for such lesser amount, if " any, as may be found due to defendant No. 3 in respect of " the deed dated April 3, 1917. "Charges (B) and (C) operate in respect of 16 annas share " in three villages, 8 annas share in four villages and one " house, the entire property covered by plaintiffs first three "deeds. "Charges (B) and (C) operate in respect of 16 annas share " in three villages, 8 annas share in four villages and one " house, the entire property covered by plaintiffs first three "deeds. Charge (C) has priority in respect of the 2nd and " 3rd deeds of the plaintiffs, but not in respect of the first deed." A decree in accordance with the judgment of the Subordinate Judge was passed on May 27, 1927. An appeal from the said decree was dismissed by the Chief Court of Oudh on April 26, 1928. An appeal from the decree of the Chief Court was dismissed by the Privy Council on April 20, 1931. Having obtained his rights judicially determined and safeguarded, the plaintiff, as already mentioned, instituted on July 31, 1931, the suit out of which this appeal arose for the sums due to him, which then amounted to Rs. 45,775-2-3, by the sale of the mortgaged properties, impleading as defendant No. 1, Parsotam Das (decree holder No. 2 in the foreclosure suit), and defendant No. 2, Devandra Nath (the son of decree holder No. 1). The other defendants were the heirs of Musammat Baktawar Begum, who had died, and the subsequent transferees of some of the mortgaged properties. In para. 12 of the plaint, the plaintiff stated that " the cause of action for the suit arose " on April 20, 1931, the date of the Privy Council decision." The contesting defendants (respondents) raised various defences of which the only one with which the Board was now concerned was that the suit was time-barred. On that question, with respect to which issue 3 in the suit " Is the suit barred by “limitation " was framed, the courts in India, the trial judge, and, on appeal, the High Court (Harries and Rachhpal Singh JJ.), held that the 12 years period of limitation prescribed by law for the enforcement of a charge expired before the suit was filed on July 20, 1931, and that it was therefore barred by time. 1944. April 26. Wallach for the appellant. The decree of May 27, 1927, created a charge in favour of the appellant, and the period of limitation for his suit starts from that date— he had under art. 132 of the Indian Limitation Act, 1908, twelve years from 1927 in which to bring his suit. It was brought in 1931. 1944. April 26. Wallach for the appellant. The decree of May 27, 1927, created a charge in favour of the appellant, and the period of limitation for his suit starts from that date— he had under art. 132 of the Indian Limitation Act, 1908, twelve years from 1927 in which to bring his suit. It was brought in 1931. All that the appellant could do was to ask for the specific property mentioned in the 1927 suit to be sold ; his cause of action is the decree of 1927, when the charge was declared and created. Limitation started on May 27, 1927, or, alternatively, the respondents having been in possession of the mortgaged properties and having received rents and profits towards payment of their mortgage, a fresh period of limitation should be computed from the time when the last payments were made, under s. 20 of the Indian Limitation Act. If the submission in respect of the charge be right, the second matter does not arise. Rewcastle K.C. and Khambatta for the respondents. If the decree of 1927 created a charge on the property then no question of limitation arises, and the respondents must fail. That decree, however, does not create a charge, it merely declares the existence of a charge which already existed. The right of the appellant is not derived from the decree, but from the fact that he was subrogated to the rights of the prior mortgagees to whom he had made payment, and to go back to the creation of the charge one must look to the original mortgage. The charge came into existence when the appellant was subrogated and stepped into the shoes of the prior mortgagees. If that be right, the appellants suit is barred by limitation. Khambatta followed. Wallach replied. June 12. The charge came into existence when the appellant was subrogated and stepped into the shoes of the prior mortgagees. If that be right, the appellants suit is barred by limitation. Khambatta followed. Wallach replied. June 12. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued It is not necessary for the purposes of this appeal to examine the reasoning of the learned judges of the courts in India as to when exactly the time began to run, whether from the time when the money became due under the mortgage bonds, or from the dates of payments made by the plaintiff, as in either case the period had expired and, further, the question in this particular form was not presented for their Lordships consideration, nor does it arise in the view that they take of the ground on which their decision in this case should be based. The position taken up by the plaintiff in the plaint, that the cause of action for the recovery of the amount by enforce ment of the charge accrued to him on the date on which their Lordships of the Privy Council delivered their judgment on the appeal, i.e., April 20, 1931, was not maintained by him before the High Court, where it was contended on his behalf, relying on sub-s. 2 of s. 20 of the Indian Limitation Act, that the suit is within time " because of certain payments alleged to " have been appropriated by the defendants during their " possession." Section 20, sub-s. 2, of the Limitation Act is as follows " Where mortgaged land is in the possession of " the mortgagee, the receipt of rent or produce of such land " shall be deemed to be a payment for the purpose of subsection (1.)"—which deals with the effect of payment of interest as such or part payment of principal before the expiration of the period of limitation. The learned judges refused permission to the plaintiff to raise this ground as it was a new one raised for the first time in appeal, and required for its decision investigation of new facts. The learned judges refused permission to the plaintiff to raise this ground as it was a new one raised for the first time in appeal, and required for its decision investigation of new facts. It may be stated that their Lordships have not been able to appreciate the significance of this new point raised by the appellant, but it is not necessary for them to consider it, or the question whether or not the High Court was right in refusing him permission to raise it, as Mr. Wallach does not now press it before the Board, his sole argument being that a charge was created in favour of the plaintiff by the decree passed by the Subordinate Judge of Mohanlalgang in suit No. 13/39 (the suit for foreclosure) on May 27, 1927, and the present suit having been instituted on July 31, 1931, is well within the 12 years period of limitation. It was also contended before the High Court " that a charge " had been created in favour of the plaintiff by virtue of the " judgment passed by the learned Subordinate Judge of " Lucknow," but the contention was rejected, the learned judges stating, amongst other things, that the effect of the decision of the Subordinate Judge was merely that " he " declared that the plaintiff has a right to recover the amount " due by enforcing his claim in a separate suit." The short question for their Lordships to consider is whether the decree passed by the Subordinate Judge created a charge in favour of the plaintiff for, if it created a charge, it is not disputed that the suit is in time. Mr. Rewcastle, counsel for the respondents, has argued that the decree only declared a charge which had existed before, but did not create one. Their Lordships are unable to accept this argument. Attention has already been drawn to the concluding portion of the Subordinate Judges judgment in the foreclosure suit. Incorporating this portion in it (see para. 2), a preliminary decree for foreclosure in the usual form prescribed under O. 34, r. 2, C.P.C., was passed, and it stated " if the decretal " amount, with costs, is not paid within six months, i.e., on " or before November 27, 1927, the one anna share .... Incorporating this portion in it (see para. 2), a preliminary decree for foreclosure in the usual form prescribed under O. 34, r. 2, C.P.C., was passed, and it stated " if the decretal " amount, with costs, is not paid within six months, i.e., on " or before November 27, 1927, the one anna share .... will " be sold and the defendants shall be debarred from all rights " to redeem the property . . . ." This must have been followed subsequently by a final decree, though it has not been filed, for it is admitted that the respondents have been, and are, in possession of the properties. The plaintiff by making the two payments mentioned above had subrogated himself to the rights of the mortgagees whom he paid off, and the rights which he had thus" obtained became merged in the decree passed by the Subordinate Judge in the foreclosure suit. In the circumstances, it is clear to their Lordships that the rights which the respondents have obtained can only be subject to the qualification of the rights of the appellant, i.e., a charge in favour of the plaintiff must be held to have been created by the final decree in Suit No. 13/39 of 1927. That this should be the normal construction of the final decree is not denied, and their Lordships think rightly, by counsel for the respondents. Viewed in this light, it is not disputed that the present suit to enforce the charge is within time. In the result, their Lordships will humbly advise His Majesty that this appeal should be allowed, and that the appellant should be given a decree as prayed for, with costs throughout.