the fifth and the sixth payments were both made in the month of May, 1932, the seventh on 25th July, 1934, and the last payment was made on 15th of May, 1936.
P. Sinha B. K. Saran, with him for the respondent.
As the bond companyld be treated as a mortgage bond, the suit, as one for enforcement of a mort gage, was, in the opinion of the learned Judges, quite within time, and it was number necessary in these circumstances to call in aid the provisions of section 20 of the Limita tion Act for the purpose of extending the period of limitation.
Appeal from a judgment and decree dated 17th March, 1944, of the High Court of Judicature at Patna Fazl Ali J. and Beevor J. in F.A. No.
It is the propriety of this decision that has been challenged before us in this appeal.
The third payment is dated 8th of March, 193l, and the fourth was made within one month after that on 3rd April, 1931.
The present suit was instituted, as said above, on the 4th March, 1940.
75 and was made on the 5th of June, 1929.
81 of 1950.
October 17.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It is di rected against a judgment and decree of a Division Bench of the Patna High Court dated March 17, 1944, affirming, on appeal, a decision of the Subordinate Judge of Purnea dated February 27, 1942.
The appeal was heard by a Division Bench of the Patna High Court, companysisting of Fazl Ali C.J. and Beevor J., and the principal point canvassed on behalf of the defend ants appellants was, that the trial companyrt was wrong in holding that the plaintiffs claim for a personal decree was number barred by time.
The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evi dence on the record, that the bond sued upon was number legally attested and hence companyld number rank as a mortgage bond.
On this finding he refused to make a decree for sale of the mortgaged property in favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party.
The argument put forward was that the suit, as one for personal relief against the debtors, was barred on the expiry of 6 years from the date for repayment mentioned in the bond and the part payments relied upon by the plaintiffs in their plaint were ineffectual for the purpose of extending the period of limitation under section 20 of the Indian Limitation Act The High Court on hearing the appeal came to the companyclusion that the bond in suit was duly attested and was effective and enforceable as a mortgage bond, and that the view taken by the trial companyrt on the question of attestation companyld number be sustained on the evidence on the record.
The Judgment of the Court was deliv ered by MUKHERJEA J. This appeal, which was originally taken to the JudicialCommittee, on special leave, granted by an Order in Council dated August 2, 1946, number stands transferred to this companyrt by reason of the aboli tion of the jurisdiction of the Privy Council.
Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but numberappeal or ,cross objection was filed by the plaintiffs against the refusal of the trial Court to make an order for sale of the mortgaged property in their favour.
According to the Subor dinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did number become time barred by reason of the fact that there were several payments made by the defendants towards the satis faction of the debt, which attracted the operation of sec tion 20 of the Indian Limitation Act.
47 of 1942, arising out of decree dated 27th February, 1942, of the Subordinate Judge of Purnea in Title Mortgage Suit No.
C. De Bhabhananda Mukherjee, with him for the appellants.
7 of 1940.
