Judgment 1. This is unsuccessful plaintiffs regular second appeal, who, though succeeded before the trial Court in the matter of suit for possession by way of redemption of mortgage but lost the same before the appellate Court wherein suit was dismissed on the only issue of limitation. 2. At this stage all that needs to be determined is as to whether the findings of learned appellate Court returned on Issue No. 2 need any interference. The bare minimum facts that need to be mentioned for deciding the issue aforesaid reveal that the plaintiffs filed a suit for possession by way of redemption of 1/17th share of land measuring 750 kanals 1 marla situated in Pahuwind, Tehsil Patti, as described in the plaint. It was, inter alia, pleaded that Sunder Singh son of Lal Singh was the owner of 1/17th share of the suit land and he had mortgaged the same with defendant Nos. 1 to 7 for a sum of Rs. 1500/-. The original mortgage deed was with the defendants and copy could not be obtained as the mortgage deed was registered as Kasur, District Lahore, which is now a part of Pakistan. While giving the particulars and the details of the mortgagee, the name of mortgagee was stated to be Sunder Singh son of Lal Singh and Ganda Singh son of Sher Singh. Defendants 1 to 7 were stated to be heirs of Ganda Singh. The date of mortgage was stated to be 5-5-1917 and the mortgage was for a sum of Rs. 1500/-. The limitation of mortgage, it was further pleaded in the plaint, was seven years, which was certainly over when the suit was filed on 4-1-1971. It was further pleaded that no interest was to be paid on the mortgage amount. The possession of the land at the time of mortgage was in the name of Sunder Singh, who had died about 20 years back and that plaintiffs and defendants 8 and 9 were his legal heirs but inasmuch as defendants 8 and 9 had not joined the plaintiffs, they were arrayed as party-defendants and defendants 1 to 7 were requested to admit the claim of the plaintiffs and take the mortgage amount and redeem the land but they refused and accordingly the suit was filed and the present appeal was filed with the result already indicated above. 3.
3. Learned appellate Court while reversing the findings on Issue No. 2 pertaining to the suit being within limitation held as follows : "The main contention of the counsel for the appellants is that the plaintiffs have not been able to prove the particulars of the mortgage in order to show that the suit for redemption was within limitation, and, therefore, it cannot be held that the suit has been filed within time. The counsel for the respondents has argued that period of limitation was seven years, fixed in the mortgage deed, and accordingly the suit has been filed within time under the law. Admittedly, this is a case, in which the original mortgage deed has not seen the light of the day and the learned counsel for the respondents has tried to prove the terms of the mortgage from the copy of the mutation placed on the record, in which, the date of mortgage was given as 5-10-1917. But perusal of the mutation does not show what was the period of mortgage, nor Ex.P2, gives the period of mortgage on which the learned trial Court has placed reliance and the counsel for the respondents has not been able to show as to from where, he has concluded the period of mortgage to be seven years, and the onus was on the plaintiff to prove that the suit was being filed within sixty years of the mortgage and mere mentioning of the mortgage in the copy of the mutation, does not absolve him from proving that the redemption suit was within time, and accordingly, I come to the conclusion that there is nothing on the record to hold that the period of redemption being seven years. Therefore, suits does not become within time and accordingly reverse the findings of the trial Court, on the issue of limitation. 4. Mr. Puri, learned counsel representing the appellants, contends that issue pertaining to limitation has been wrongly decided by learned first Appellate Court and that the suit was within limitation. His primary contention in support of the plea, referred to above, is that the provisions of the Limitation Act, 1908 (hereinafter referred to as the Act of 1908) read with the provisions of the Limitation Act, 1963 (hereinafter referred to as the Act of 1963), would make the period of limitation for redemption of a mortgage as 67 years.
His primary contention in support of the plea, referred to above, is that the provisions of the Limitation Act, 1908 (hereinafter referred to as the Act of 1908) read with the provisions of the Limitation Act, 1963 (hereinafter referred to as the Act of 1963), would make the period of limitation for redemption of a mortgage as 67 years. He contends that limitation provided for redemption of the land in the Act of 1908 is 60 years and 7 years have to be added to the same on the dint of the provisions contained in the Act of 1963. The Act of 1963 came into force on 1-1-1964. The mortgage was of the year 1917 and if 67 years are added to it, the suit could be filed in 1984. The suit in the present case was filed on 4-1-1971 and the same would, thus, be within the period of limitation, contends learned counsel. This contention of learned counsel is based on sub-section 1(a) of Sec. 13 of the Act of 1963. 5. When this matter came up for hearing on 27-8-2003 and when learned counsel representing the appellants raised the aforesaid contention, the Court recorded the following order :- "In this endeavour to show that the suit in the present case was not barred by limitation and the findings of learned first Appellate Court reversing the findings of learned trial Court on the issue of limitation are incorrect, counsel relies upon proviso to sub-section (1)(a) of Sec. 30 of the Limitation Act and on the basis thereof, contends that period of limitation in the present case would be by counting 60 years as period of limitation as provided under the Act of 1908 plus 7 years i.e., 67 years and inasmuch as, the mortgage is of 5-5-1917 and the suit was filed on 4-1-1971, same would be within limitation. When confronted with the proposition that Limitation Act of 1963 was not meant to enlarge the limitation as prescribed under the Act of 1908 and the proposition advanced by him would militate against the main provisions of Sec. 30(1)(a) of the Act, counsel seeks time to study the matter and then advance the arguments. List again on 3-9-2003." 6 Learned counsel, despite the observations of the Court made in the order dated 27-8-2003 aforesaid, still persists with the same very contention, as noted above.
List again on 3-9-2003." 6 Learned counsel, despite the observations of the Court made in the order dated 27-8-2003 aforesaid, still persists with the same very contention, as noted above. Sub-section (a) of Sec. 30 of the Act of 1963 provides that any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be instituted within a period of 7 years next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. Provisions of sub-section (a) of Sec. 30 of the Act of 1963, as referred to above, cannot be interpreted to mean that period prescribed for limitation under the Act of 1908 has to be extended by 7 years to work out the prescribed period of limitation for filing a suit. All that this Section prescribes is that whereas, with regard to any suit etc. period of limitation prescribed in the Act of 1963 is shorter than the one mentioned in the Act of 1908, such period as provided in the Act of 1963 would be extended by 7 years; meaning thereby, since a period of 30 years has now been prescribed for limitation under the Act of 1963, to which will be added 7 years, thus, making limitation period for redemption of mortgage as 37 years. It is further significant to mention that even if the suit may be filed within the period as prescribed under the Act of 1908, if it was to expire before adding 7 years to the period of 30 years as provided under the Act of 1963, it is the shorter period which will govern the period of limitation. When confronted with this position, learned counsel representing the appellants then relied upon proviso to clause (a) of Sec. 30 of the Act of 1963, which was inserted by the Limitation Amendment Act, 1969 and came into force with effect from 26-3-1969. Contention of Mr.
When confronted with this position, learned counsel representing the appellants then relied upon proviso to clause (a) of Sec. 30 of the Act of 1963, which was inserted by the Limitation Amendment Act, 1969 and came into force with effect from 26-3-1969. Contention of Mr. Puri is that the proviso would make it clear that limitation has to be counted in such a manner that 7 years have to be added to the 60 years, the limitation provided under the Act of 1908 and in the manner aforesaid, the suit could be filed within 67 years from the date of mortgage and in that event, the suit would be within limitation. This contention again appears to be incorrect as the same is not supported by the language employed in proviso to Clause (a) of Sec. 30 of the Act of 1963. Mr,. Puri appears to be relying upon the earlier part of the proviso completely missing out the words in the proviso as has already expired before the commencement of the Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act. The contention of Mr. Puri, as referred to above, has thus to be repelled. Further if one is to examine the provisions of Sec. 31 of the Act, it would again appear that the Act of 1963 does not enlarge the period of limitation if the same has already expired under the Act of 1908. It is clearly mentioned in the Section aforesaid that the Act of 1963 would not enable anyone to file a suit, appeal or application for which the period of limitation prescribed by the Act of 1908, has already expired. Contention of Mr. Puri absolutely militates against the language employed in Sec. 31 of the Act of 1963. 7. Mr. Puri, in his endeavour to show that the suit is within limitation has also raised a plea that plaint was filed on 4-1-1971. He states that 2-1-1971 was a Bank holiday, whereas 3-1-1971 was a Sunday and, therefore, suit having been filed on 4-1-1971, could be within limitation as, two holidays preceding 4-1-1971 had to be excluded in computing the period of limitation. This Court finds no merit in the aforesaid contention of learned counsel.
He states that 2-1-1971 was a Bank holiday, whereas 3-1-1971 was a Sunday and, therefore, suit having been filed on 4-1-1971, could be within limitation as, two holidays preceding 4-1-1971 had to be excluded in computing the period of limitation. This Court finds no merit in the aforesaid contention of learned counsel. There are no pleadings to the effect that 2nd and 3rd January, 1971, were holidays. This plea was not raised at any stage whatsoever, either in the plaint or even during the course of arguments before the Courts-below. Further, Ist of January, 1971, in any case, was not a holiday. It is only if the days immediately preceding the last day for filing the suit may be holidays, that the same may be excluded in computing the period of limitation. Still further, there is no answer to the findings recorded by learned first appellate Court, as extracted in earlier part of the judgment wherein, it is held that original mortgage deed has not seen the light of the day and the learned counsel for the respondents has tried to prove the terms of the mortgage from the copy of the mutation placed on the record, in which, the date of mortgage was given as 5-10-1917. But perusal of the mutation would not reveal the period of mortgage. This Court may further add that date of mortgage could not be proved from a copy of mutation particularly when no application was made to lead secondary evidence to prove the loss of original or certified copy of the mortgage deed. 8. Finding no merit in the appeal, the same is dismissed, leaving, however, the parties to bear their own costs. Appeal dismissed