Rama Varma Thampuran v. Kunjupennamma — 1951 DIGILAW 81 (KER)

Judgment :- 1. The question raised in this second appeal arising from proceedings in execution of a decree for redemption of an otti is whether the execution is barred by time. The two lower courts have answered the question concurrently against the decree-holder and he has therefore brought this second appeal. 2. The final decree for redemption which was passed by the appellate court entitles the decree-holder to recover possession of the mortgaged property on payment of the mortgage money and value of improvements. With reference to certain buildings shown as item (2) in the Schedule annexed to the decree, the decree provides that the defendants should remove the same within two months from the date of the decree and that in the event of their not carrying out the direction the decree-holder can recover possession of them on payment of the value fixed for them by the decree. Defendant 2 was to receive from the decree-holder the commission batta he paid into the trial court to take out a commission to value the improvements and the decree-holder was also to pay defendant 2 the latter's costs before the appellate court. The date of the appellate decree is 30.3.1110. E.P. No. 137 of 1121, where from this second appeal arises was filed on 24.2.1121 and it is the one and only application the decree-holder filed in the case to execute the decree. Prima facie the execution petition was filed out of time, but for the decree-holder reliance is placed on two acknowledgments in writing made by defendant 2. 3. The first one bears the date 12.10.1114 and it is contained in an application made by the said defendant before the court of first instance (the District Munsiff's Court, Mavelikkara) to transfer the decree to the Adoor Munsiff's Court for execution against the decree-holder for realising the costs due to him as per the terms of the appellate decree. That application sets out in clear and unambiguous language the terms of the final decree for redemption and contains a clear admission of the decree-holder's right to redeem the mortgaged property as per the terms of the final decree passed in the case. As the decree is a registered one the application defendant 2 filed was within time. That application sets out in clear and unambiguous language the terms of the final decree for redemption and contains a clear admission of the decree-holder's right to redeem the mortgaged property as per the terms of the final decree passed in the case. As the decree is a registered one the application defendant 2 filed was within time. After the decree was transferred to the Adoor Munsiff's Court defendant 2 filed there an execution application on 31.11.1116 against the decree-holder and like his application of 12.10.1114 before the parent court this petition also sets out the terms of the decree for redemption. There is therefore another acknowledgment by defendant 2 of the decree-holder's right to redeem under the decree. It would appear that pursuant to this application defendant 2 succeeded in realising the costs due to him from the decree-holder. A certificate to that effect is seen filed by him on 7.2.1117 before the court executing the decree. That however is only by the way. What is relevant for our present purpose is that the execution application giving rise to this second appeal was filed within six years of the acknowledgment defendant 2 made in his execution application dated 31.11.1116. The question for decision is whether these two acknowledgments have kept the decree alive as to entitle the decree-holder to redeem the mortgaged property pursuant to the application he filed on 24.2.1121. 4. The first court, that is, the court which passed the decree, before whom this application was made omitted to take notice of the application for transfer of the decree made before it on 12.10.1114 and consequently held that the acknowledgment contained in the execution application defendant 2 filed on 31.11.1116 served the decree-holder no useful purpose inasmuch as more than six years had elapsed after the final decree when that application was made. The lower appellate court however while referring to both the petitions filed by defendant 2 took the view that the statements contained in these petitions did not amount to sufficient acknowledgment of the decree-holders right to redeem. The court purports to base its decision on the majority view in Kaki Muthaliaru v. Sankara Pillai -1943 T.L.R. 257. The lower appellate court however while referring to both the petitions filed by defendant 2 took the view that the statements contained in these petitions did not amount to sufficient acknowledgment of the decree-holders right to redeem. The court purports to base its decision on the majority view in Kaki Muthaliaru v. Sankara Pillai -1943 T.L.R. 257. A reading of the judgments in that case however shows that the execution application the defendant in that case filed to execute the decree in his favour did not contain any reference to that part of the decree which was in favour of the decree-holder. That, as stated earlier, is not the case here. We are satisfied that defendant 2's petitions contained clear and unequivocal admissions as to the decree-holder's right to redeem and the view the lower appellate court took on this matter cannot therefore be sustained. 5. This however does not decide the present case. The appellant's predecessor-in-interest gave an otti with reference to the suit property to one Rama Iyen Krishna Iyen on 21.1.1084 and in 1087 Makaram defendants 1 and 2 purchased that otti right. The decree under execution is one passed to redeem the said otti. Both the defendants were alive when the decree was passed but by the time defendant 2 filed his petition before the Mavelikara District Munsiff's Court defendant 1 had died and his legal heirs were brought on record as additional defendants 2 to 6. As noticed earlier the acknowledgments relied upon by the decree-holder were made by defendant 2 alone. S.19 of the Limitation Act so far relevant enacts that an acknowledgment of liability in respect of any property or right made in writing signed by a party before the expiration of the period prescribed for a suit or an application in respect of that property or right shall give a fresh starting point as against the person who makes the acknowledgment. Explanation IV to S.19 of the Travancore Limitation Act (Explanation III to S.19 of the Limitation Act of (1908) states that for purposes of the section an application for the execution of a decree or order is an application in respect of a right. The remaining provisions of the section need not be referred to here. The legal heirs of defendant 1 did not derive any title or liability with respect to the decree under defendant 2. The remaining provisions of the section need not be referred to here. The legal heirs of defendant 1 did not derive any title or liability with respect to the decree under defendant 2. Nor had defendant 2 any right or authority to represent them in proceedings in execution of this decree or for that matter in any legal proceeding. Further more defendant 2 was taking out execution to realise the amounts due exclusively to him. If at the time when an acknowledgment is made there are more than one person in existence who stand in relation to each other as joint contractors, partners, executors or mortgagees, then the acknowledgment made by one would save limitation as against that person and would be of no avail as against the others. See Md. Taqi v. Raja Ram - A.I.R. 1936 All. 820 (F.B.). The position is not any the different as regards joint judgment debtors. That the acknowledgments made by defendant 2 will not keep the decree alive as against the legal heirs of defendant 1 was not very seriously disputed before us. That position is clear from Ss. 19 and 22(2) of the Limitation Act in Travancore. (S. 22 corresponds to S. 21 of the Indian Limitation Act.). However as the point was not conceded in so many words we think it proper to refer to some decided cases which lay down that when a joint decree is passed against several persons an acknowledgment of liability by one of them will not save limitation as against the others and that such acknowledgment will save limitation as against the judgment debtor who makes the acknowledgment. We do not think it necessary to discuss the cases. We shall merely make a reference to some cases on the point we came across; Chandra Kunwar v. Ram Din -13 I.C. 702 (Cal.); Nanda Lal Marwari v. Rampal Singh - (1912) 14 I.C.1 (Cal.); Ban Behary Kapur v. Janendranath Ghosh - (1914) 22 I.C. 709 (Cal.) and Jogendra Presad Mitra v. Authosh Goswami - (1917) 37 I.C. 739 Cal. 6. The result of the foregoing discussion and the effect of these cases is that the acknowledgments we have in this case bind only defendant 2. He has since died and his representative-additional defendant 8 to the execution petition and respondent 6 here - is also bound by them. 6. The result of the foregoing discussion and the effect of these cases is that the acknowledgments we have in this case bind only defendant 2. He has since died and his representative-additional defendant 8 to the execution petition and respondent 6 here - is also bound by them. But on the strength of these acknowledgments the decree cannot be executed against the legal heirs of defendant 1. 7. Along side of the argument that the two acknowledgments made by defendant 2 kept the decree alive as against all the defendants the learned counsel for the appellant also stated that a joint decree cannot get barred as against some of the debtors and be alive as against the others. In fact the former argument was only an adjunct to the broader proposition now stated. As with the former, Counsel was rather half-hearted regarding this argument also. Willing to give it up he was reluctant to say so. Numerous illustrative cases can be thought of and also found in the books which refute such a general proposition. We have already dealt with the question that an acknowledgment by one judgment-debtor cannot keep the decree alive against his co-judgment-debtors and also cited decided cases bearing on the point. 8. Another familiar instance negativing the proposition is where one of the co-judgment-debtors make a payment towards part of the principal or where interest on the principal is paid as such. One decided case alone we shall refer to in this connection and that is the case reported in Ahsan Ul-Lah v. Dakkhini Din (1905) I.L.R. 27 Bom. 575. There it was held that a payment made by one of several persons jointly liable under a decree, otherwise than as agent of his co-judgment-debtors cannot operate to save limitation as against any of the judgment-debtors other than the person making the payment. In Parameswaran Nambudiri v. Seshan Patter (1928) I.L.R. 51 Mad. 583 it was held that where a decree against joint debtors was stayed as against one of them, the period during which the stay had effect cannot be deducted under S.15 of the Limitation Act, 1908 in computing the period of limitation as regards an application for execution against the other joint judgment-debtors. 583 it was held that where a decree against joint debtors was stayed as against one of them, the period during which the stay had effect cannot be deducted under S.15 of the Limitation Act, 1908 in computing the period of limitation as regards an application for execution against the other joint judgment-debtors. It was further held that Art.182, Explanation 1 of the Limitation Act, 1908 cannot be regarded as if it were a general provision of the Act, or as an explanation annexed to S.15 of the Act. This case furnishes another illustration where a joint decree while barred against some of the debtors was not barred against others. In Venkitaranga Reddi v. Chinna Sithamma -1941-1 M.L.J. 270 execution was first filed against one alone of the joint debtors. It was really barred at that time, but that judgment-debtor did not oppose the application as time barred despite notice to him and an order was passed allowing execution. A subsequent execution application was made against all the joint debtors and on objection being raised to the execution as time barred, it was held that while the judgment-debtor against whom the first application was made was precluded by reason of the order passed on that application allowing execution from raising the plea of limitation, those who were not made parties to it were entitled to raise it. The court upheld their objection and said that the execution was barred as against them. The decree was found to be capable of execution against the joint debtor against whom the first application was made. In Balayya v. Parvateeswararao -1947 - 2 MLJ 85 and in Sivalinga Thevar v. Srinivasa Mudaliar - 1947 - 2 MLJ 583 it was held that the period intervening between an order adjudging a Hindu father as insolvent and the date of the annulment of the order cannot be deducted in computing the period of limitation for execution against the sons with respect to a joint decree against the father and the sons. As against the father Statute provides the period should be exempted, but that had not the effect of keeping the decree alive against the sons. It is unnecessary to multiply instances where courts have held that a joint decree while alive against one or more of the defendants is barred against the others. 9. As against the father Statute provides the period should be exempted, but that had not the effect of keeping the decree alive against the sons. It is unnecessary to multiply instances where courts have held that a joint decree while alive against one or more of the defendants is barred against the others. 9. Art.166 paragraph 6 of the Travancore Limitation Act (corresponding to Art.182(6) of the Indian Limitation Act as it stood before the amendment in 1927) furnishes a statutory provision which would repel the argument that a joint decree cannot be barred as against some alone of the judgment-debtors. Para (6) of Art.166 reads "Where the notice next hereinafter mentioned has been issued) the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him, when the issue of such notice is required by the Code of Civil Procedure." A notice mentioned there would keep alive the decree for a further statutory period only against the person to whom the notice is issued and not against all the debtors. This aspect is referred to by Sundara Ayyar, J. in his judgment in Abdul Khadir v. Ahammed Shaiwa Rowther (1912) ILR 35 Mad. 670 and 675. The learned judge's view was clearly that there was no warrant for the proposition that a joint decree cannot be barred against some alone of the judgment-debtors. In that case the question was whether fraud or force on the part of one of several judgment-debtors in preventing execution against him of a decree enables the decree-holder to get an extension of the twelve years provided for execution by S.48 Civil Procedure Code only as against that judgment-debtor or his conduct would extend the period as against his other co-judgment-debtors who have not been guilty of such conduct. Sundara Ayyer, J. held there would be extension only as against the judgment-debtor guilty of fraud or force. That view did not prevail first as the other learned Judge, Philip, J. was of the opposite view. Under S.98 Civil Procedure Code the second appeal was dismissed but the matte was taken before a Bench of three judges in Letters Patent Appeal and their decision which was unanimous restored Mr. Justice Sundara Ayyar's view. That view did not prevail first as the other learned Judge, Philip, J. was of the opposite view. Under S.98 Civil Procedure Code the second appeal was dismissed but the matte was taken before a Bench of three judges in Letters Patent Appeal and their decision which was unanimous restored Mr. Justice Sundara Ayyar's view. We have there yet another instance where it was held that a joint decree can be barred against some of the debtors while it could remain alive against the other judgment-debtors. The decision in the Letters Patent Appeal is reported in Abdul Khadir v. Ahammed Shaiwa Ravuthar - (1915) ILR 38 Mad. 419 and what Sir Arnold White, C.J. (Sankaran Nair and Tyabji, JJ. concurring) said about the argument raised there that a joint decree cannot remain alive against some alone of the debtors is very instructive. The relevant discussion occurs at p. 422 of the report and it reads as follows: "Mr. Ananthakrishna Ayyar (now Sir, Retired Judge of the Madras High Court and sometime Chief Justice of Cochin) has suggested that the policy of the Limitation Act is that where a decree is alive against one of several joint debtors, it is alive against all the joint debtors. I am not sure that I am prepared to accept that as a statement of the general policy of the Act; but even if it be so, when we have on the one side what is said to be the general policy of the Act, and on the other, the express words of a section dealing with a specific matter, I think that the express words ought to prevail. 10. Reliance has also been placed, in support of the contention against the view adopted by Sundara Ayyar, J., on Art.182 of the Limitation Act. Mr. Ananthakrishna Ayyar has pointed out that under Paragraph 5 the time was from the date of applying in accordance with law to the proper Court for execution, and that Explanation I says that where the decree or order has been passed jointly against more persons than one, the application if made against any one or more of them, shall take effect against them all. That seems to me to be a very different matter from the matter which we are dealing with in this appeal. That seems to me to be a very different matter from the matter which we are dealing with in this appeal. The principle, I take it, is that if the judgment-creditor does some thing which keeps alive a joint decree as against one of his joint judgment-debtors, the decree is to be regarded as alive as against all the joint judgment-debtors and if it is alive, it is of course capable of execution. That is a very different matter from the present case which is not the case of a judgment-creditor having done something but of the judgment-debtor having done something which, as regards him, no doubt entitled the judgment-creditor to say "my time has been extended." So far as I can see there is no reason or principle why the judgment-creditor should be entitled to say, that, as regards the men who had not prevented by fraud or force, etc., he should also have the benefit of the enactment. I cannot see that there is any equity which the judgment-creditor can set up in this case, although it may be that in the cases which are referred to in Art.182 of the Limitation Act there is an equity arising by the fact that he had done something for the purpose of realising the fruits of his judgment. Here the creditor does nothing but relies upon something which one of his joint judgment-debtors has been doing." 11. The foregoing discussion and the authorities cited make it clear that the view that where a decree is alive against one of several judgment-debtors it is alive against all the joint judgment-debtors cannot be accepted. No such general principle can be extracted from Art.166 Explanation (1) and be engrafted into one or the other of the sections relating to the computation of the periods of limitation in the Act. The Limitation Act negatives such a general principle by the provisions of Ss. 19, 20 and 22 (Indian S. 21) and by Art.166 paragraph 6. 12. The learned Counsel for the appellant however raised another argument in support of the appeal and contended that the decree-holder was entitled to have execution taken out of the entire decree. The Limitation Act negatives such a general principle by the provisions of Ss. 19, 20 and 22 (Indian S. 21) and by Art.166 paragraph 6. 12. The learned Counsel for the appellant however raised another argument in support of the appeal and contended that the decree-holder was entitled to have execution taken out of the entire decree. Before we proceed to examine that argument we think it proper to observe that in case we are not able to accept it a further question will arise for decision whether the decree being one in redemption of a mortgage acknowledgment of liability by one co-mortgagee-defendant will be effective to sustain an application for redemption of such co-mortgagee's share in the decree. 13. The further argument the appellant's learned Counsel raised was according to him based on paragraph 5 of Art.166 (Art.182 of the Indian Limitation Act) and the second part of the second paragraph of Explanation 1 to the said Article. Paragraph 5 of Art.166 reads thus: "(Where the application next hereinafter mentioned has been made) the date of applying in accordance with law to the proper court for execution, or to take some step in aid of the execution of the decree or order, or the date of the order passed on such application or the date on which such order was carried out", and the relevant portion of Explanation 1 is: "where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all." What was urged on the purported strength of these provisions was that as the decree was alive against defendant 2 when the present execution application was made, had the decree-holder confined that application as against the heir of defendant 2 and followed that up by another application within the time prescribed against all the defendants or against the legal heirs of defendant 1 alone, in view of the provision referred to of Explanation 1, it would not have been even open to argument that the latter application was barred by time. We are afraid the argument takes within its ambit more than one false assumption. Before we proceed to examine it we must state how the argument was sought to be further implemented. We are afraid the argument takes within its ambit more than one false assumption. Before we proceed to examine it we must state how the argument was sought to be further implemented. On the strength of the assumptions made above it was urged that justice should not be allowed to be defeated because the decree-holder had chosen to file one application against all the defendants and not two as suggested by Counsel which course according to him would have been fool-proof against any plea as to bar of limitation. We were therefore asked to treat the present application as consisting of two petitions, one against the legal heir of defendant 2 and the other against the legal heirs of defendant 1, the latter application following, the former in point of time. According to the appellant's learned Counsel we would otherwise be using technicality to the prejudice of the decree- holder and to defeat justice. 14. The argument as already stated is founded on several false assumptions. It clean ignores "that statutes of Limitation are in their nature strict and inflexible enactments, intended to quiet long possession and to extinguish stale demands', Luchmee Buksh Roy v. Runjeet Ram Panday -13 BLR 177 PC. If the argument raised be good it would come to that with respect to joint decrees when it is alive against one judgment-debtor it cannot be barred against another joint judgment-debtor. We have said no such general principle can be extracted from the provisions of the Limitation Act. In the first place paragraph 5 of the Article relates to a case where there has been a previous application. Then and then alone the question whether a decree is kept alive by a previous application can arise. The execution application giving rise to this appeal is the first application filed in this case and to such an application the question invoking the aid of paragraph 5 cannot arise. The request that the application before us may be treated as two execution petitions is clearly opposed to all known rules of the law of execution. There is no scope for introducing any legal fiction of that kind into the province of the Statute Law relating to execution. To quote from Sir Dinshaw Mulla's judgment in Nagendra Nath's case, equitable considerations are out of place in construing rules of limitation. Nagendra Nath v. Suresh - AIR 1932 PC 165. There is no scope for introducing any legal fiction of that kind into the province of the Statute Law relating to execution. To quote from Sir Dinshaw Mulla's judgment in Nagendra Nath's case, equitable considerations are out of place in construing rules of limitation. Nagendra Nath v. Suresh - AIR 1932 PC 165. A passage from the judgment Buckland, J. delivered in the Full Bench decision in Amarkrishna Chaudhuri v. Jagatbandhu Biswas - (1932) ILR 59 Cal. 760 at page 773 may with advantage be quoted here: "If, as has been decided, the terms of R.2(1) involve no application, and certification is not an application within the meaning of Art. 181, the residuary article to be applied to applications for which no period of limitation is provided elsewhere in the schedule to the Act or by S. 48 Civil Procedure Code, how can it possibly be said to be an application made to take some step in aid of execution and as such within the meaning of Art.182(5)? In my judgment, the short answer is that there was no application at all, and that being the case Art.182(5) cannot be invoked on behalf of the appellant." 15. There the question for decision was whether certification under 0.21 R.2(1) of the Civil Procedure Code can be treated as an application for a step-in-aid of execution under Art.182(5). The opinion of the Full Bench was that it cannot be and what Buckland, J. said in that case quoted above would seem to us to be useful for a proper appreciation of the scope of paragraph 5. That to attract the application of para 5, some action on the part of the decree-holder in the form of a prior application is needed is clear from the judgment of Sir Arnold White, C.J. in ILR 38 Mad. 419, extract from which was quoted earlier. 16. A second impediment to accept the argument is that when a decree for redemption is passed jointly against several co-mortgagees it is difficult to say that an application against one of some alone of the co-mortgagees will be an application for execution in accordance with law. That is a pre-requisite to invoke the aid of paragraph 5 of the Article to have a fresh starting point of limitation. 17. That is a pre-requisite to invoke the aid of paragraph 5 of the Article to have a fresh starting point of limitation. 17. Third and last, in order that a petition against one joint judgment-debtor may extend the period for execution against the rest by a further period allowed by law the decree should have been alive against them when the application against the joint debtor was filed. It is only an execution petition filed when the decree is alive that would extend the life of the decree and not one filed after it is dead. When the subsequent application is brought against all the debtors it would be open to such of them as were not made parties in the previous application to show that even on the date of that application the decree was barred. See Vengataranga Reddi v. Chinna Sithamma (1941) 1 M.L.J. 270 already referred to. To hold otherwise would be the same thing as saying that an acknowledgment by one judgment-debtor could keep alive a decree against all the judgment-debtors. We have definitely said that an acknowledgment by one judgment-debtor has not the effect of keeping the decree alive as against all the judgment-debtors and the learned Counsel for the appellant had practically conceded it when he launched upon this argument. indirect attempt to confer on an acknowledgment by a co-judgment-debtor an efficacy which by a direct approach it has become clear it inherently has not. 18. We have next to consider whether the acknowledgment by defendant 2 would be effective to sustain an execution application against his share in the redemption decree. Unfortunately this aspect of the case did not receive at the Bar the attention it deserved. Based on the doctrine of the indivisibility of a mortgage we have come across several cases which hold that an acknowledgment by one only of several mortgagees of the liability to be redeemed is not sufficient to keep the right to redeem alive even as regards the share of the party acknowledging. The question is seen discussed in Rustomjee's Law of Limitation 5th (1936) Edn. Vol. I pp. 425-426 and in Chitaley's Commentaries to the Indian Limitation Act 2nd (1942) Edn. Vol. I pp. 829-831. The question is seen discussed in Rustomjee's Law of Limitation 5th (1936) Edn. Vol. I pp. 425-426 and in Chitaley's Commentaries to the Indian Limitation Act 2nd (1942) Edn. Vol. I pp. 829-831. The reason given is that except in certain special circumstances the entire mortgage has to be treated as one indivisible unit and the redemption of a portion of a mortgage alone cannot be allowed under law. The earliest Indian decision we came across setting out this view is Bhogilal v. Amritlal - (1893) I.L.R. 17 Born. 173. That case refers to and follows a decision of the Chief Court of the Punjab in Mussummat Mah Bibi v. Motan Mal 12 Punjab Records 162. The judgment Fitzpatrick, J. (Boulneis, J. concurring) delivered in that Punjab case which is quoted extensively by Jardine, J. in I.L.R. 17 Born. 173 at pp. 179 -182 will amply repay perusal. It points out that under the English Statute while an acknowledgment by a co-mortgagee binds him alone provision is made there for apportionment of the mortgage debt between him and others. The absence of a similar provision in the Indian Statutes has been taken by the learned judge as a test, almost conclusive, to show that on the basis of an acknowledgment by one co-mortgagee piece meal redemption cannot be allowed in India. That view appealed to Jardine, J. and with respect we venture to think that to be a correct approach to the question. The decision in I.L.R. 17 Born. 173 has been referred to and followed in a number of cases. To our knowledge in no case has that been dissented from though from time to time attempts have been made to distinguish it. Among cases which follow the decision may be mentioned. Dharma v. Balmukana - (1896) I.L.R. 18 All. 458; Jwala Prasad v. Achachey Lal - (1912) 34 All. 271 and Narayan v. Govind - (1927) 29 Bombay Law Reporter 1563. The earlier Statutes of Limitation in India, Act XIV of 1859 or Act IX of 1871, did not recognise an agent as a person competent to give an acknowledgment for the purpose of giving rise to a fresh starting point for limitation. An agent was introduced as a person competent to give an acknowledgment for the first time by S.19 of the Act of 1877. An agent was introduced as a person competent to give an acknowledgment for the first time by S.19 of the Act of 1877. In this case we are not concerned with the said legislative change inasmuch as defendant 2 never purported to act as an agent or in any other representative capacity. Admittedly he had no such right. The decisions in Nadar Shah v. Ishar Das - A.I.R. 1920 Lah. 516; Ahmad Shah v. Kartar Singh - A.I.R. 1934 Lah. 293(1) and Mukh Narain v. Ramalochan - A.I.R. 1941 Pat. 147 take the same view as that held in the cases referred to above that where the mortgage is a joint mortgage and not capable of being redeemed piece-meal an acknowledgment by one only of several mortgagees is altogether inoperative and will not bar the statute even as regards the share of the party acknowledging. The cases in Harilal v. Narsilal - (1909) 11 Bombay Law Reporter 318 (later affirmed in appeal by the Privy Council in Hiralal Ichhalal v. Narsilal Chaturbhujdas - (1913 - I.L.R. 37 Born. 326) and Motilal Jadav v. Samal Bechar - (1913) I.L.R. 54 Born. 625 are illustrations of exceptions to the rule laid down in the earlier cases and those exceptions only prove the rule. We do not think it necessary to go into the facts of these cases but it will be instructive to quote a passage from the judgment of Madgavkar, J. in the latter case. (page 632). "The actual issue in the present case lies, in my opinion, within a narrow compass. The general rule is that a mortgage is one and indivisible and so remains unless and until it is split up with the consent of both the mortgagor and the mortgagee. Neither the property nor the burden can be divided without the consent of both. An acknowledgment under S. 19(1) of the Indian Limitation Act must be signed by the party against whom the right is claimed. Under S. 21, Cl. (2), of that Act, in the case of a joint contract, an acknowledgment signed by one of several joint contractors cannot bind the others." In that case the learned Judge's (Madgavkar, J.) view did not ultimately prevail, but the other learned judges who took part in the decision of the case at its different stages only distinguished it from the earlier cases. That will be clear from the following passage from the judgment of Patkar, J. occuring at page 641 of the report: "The case of Bhogilal v. Amritlal (189217 Born. 173) was followed by the Allahabad High Court in Dharma v. Balmakund - (1896 -18 All. 458) where it was held that an acknowledgment of the title of the mortgagor made by one only of the two mortgagees would not avail to save the mortgagor's right of redemption being barred by limitation where the mortgage was a joint mortgage and not capable of being redeemed piecemeal. The case of Dhurma v. Balmakund - (1896 -18 All. 458) was decided by a single judge but the decision was followed in Jwala Prasad v. Achachey Lal) 1912 - 34 All. 371) The principle of these cases would apply where the mortgage is a joint mortgage and incapable of being redeemed piecemeal, and under Cl. (2) of S. 21 of the Indian Limitation Act of 1908, one of several joint mortgagees cannot be bound by an acknowledgment made by, or by the agent of, another co-mortgagee. In the present case the mortgage debt was split up by the mortgagee on account of a partition between the heirs of the original mortgagee and three acres and eighteen gunthas were allotted to the share of Bechar, the father of defendant No. 1, and the rest of the property was allotted to Bhukhan Girdhar, the ancestor of defendants Nos. 2 to 4. So far as the mortgagee is concerned, there was an effective division not only of the mortgagee-debt but also of the mortgaged lands " ...................... 19. In that case the second appeal was first heard by Sir Norman Macleod, C.J. The learned Chief Justice allowed redemption of a divided half of the mortgaged property on payment of the entire mortgage money. The defendant took the matter in Letters Patent Appeal before a Division Bench composed of Madgavkar and Patkar, JJ. They differed in their conclusions and Madgavkar, J's view reversing the decision in the second appeal prevailed, as he was the senior Judge. But on a further appeal under the Letters Patent, heard by a Bench of three Judges (Sir Amberson Marten, Kt. Chief Justice, Mr. Justice Mirza and Mr. Justice Broomfield) Madgavkar, J's decision was reversed. They differed in their conclusions and Madgavkar, J's view reversing the decision in the second appeal prevailed, as he was the senior Judge. But on a further appeal under the Letters Patent, heard by a Bench of three Judges (Sir Amberson Marten, Kt. Chief Justice, Mr. Justice Mirza and Mr. Justice Broomfield) Madgavkar, J's decision was reversed. All the three learned judges gave separate but concurring judgments and all of them based their decision on the fact that there was in that case a splitting up of the mortgagee's interest and that the case was therefore distinguishable from the earlier cases. It was pointed out that the divided owner of a part of a mortgage holding cannot be prejudiced when he is sought to be redeemed on payment of the entire mortgage money. In the present case though there was originally only one mortgagee on the material dates when defendant 2 made the acknowledgments that interest had devolved on more than one person. As pointed out in an earlier part of this judgment the material date is the date of the acknowledgment and not the date of the transaction. All the cases referred to above are no doubt cases relating to redemption of mortgages and not to decrees for redemption. So long as a decree does not split up the mortgage the rule of the decisions referred to above must apply to it. There cannot be a piecemeal execution of a redemption decree which on its terms is one and indivisible. In this view of the law the acknowledgment made by defendant 2 cannot entitle the decree-holder to seek execution of the decree even for the share of defendant 2 in it. The Second Appeal fails in the result and we dismiss it. As our decision turns on grounds different from those mentioned by the lower courts we make no order for costs here. Dismissed.