SCI (17.10.1951) In Sant Lal Mahton Vs. Kamala Prasad. [Civil Appeal No. 81 Of 1950] held that;
To claim exemption under section 20* of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred.
* Corresponding to Section 19 in “The Limitation Act, 1963”
Excerpts of the order;
# 2. The appellants before us are the first party defendants in a suit, commenced by the plaintiffs respondents, for enforcement of a simple mortgage bone, by sale of the mortgaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence on the record, that the bond sued upon was not legally attested and hence could not rank as a mortgage bond. On this finding he refused to make a decree for sale of the mortgaged property on favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate 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 not become time-barred by reason of the fact that there were several payments made by the defendants towards their satisfaction of the debt, which attracted the operation of section 20 of the Indian Limitation Act. . . . .
# 3. Mr. De, who appeared in support of the appeal, has contended in the first place that even if the High Court was right in holding that the bond in suit was effective as a mortgage bond and the suit could be treated as one for enforcement of a mortgage, no decree for money could be passed against the defendants personally, unless the suit was instituted within the period prescribed by Article 116 of the Limitation Act. The High Court, it is said, overlooked this aspect of the case altogether and was wrong in not considering the question of limitation. It is argued by the learned counsel that on the point of limitation the decision of the Subordinate Judge was wrong, and as the payments relied upon by the plaintiffs had not been acknowledged in the manner contemplated by section 20 of the Limitation Act, no extension of time was permissible under the provisions of that section, Mr. De further contends that on the question of attestation, the correct finding was that arrived at by the Subordinate Judge and it is impossible to hold on the evidence that has been adduced in this case that the bond was legally attested.
# 5. . . . . The position, therefore, is that if the bond in the present case cannot be treated as a mortgage bond and the only relief which the plaintiffs can claim is one for recovery of money against the defendants personally, the suit must be deemed to be barred, as it was instituted beyond 6 years from the due date of payment unless limitation is saved by reason of the payment under section 20 of the Limitation Act. This leads us to enquire as to whether the trial Judge was right in holding that the payments made by the defendants satisfied the requirements of section 20 of the Limitation Act and were hence available to the plaintiffs for the purpose of extending the period of limitation within which the suit should otherwise have been brought.
# 6. The plaintiffs stated specifically in their plaint that the defendants made eight payments in all, aggregating to a sum of Rs. 780-9-0, in part satisfaction of the debt, since the execution of the mortgage bond. The first payment which was of a sum of Rs. 300 was made on 21st January, 1928, and this was before the expiry of the due date mentioned in the bond. The second payment was of Rs. 75 and was made on the 5th June, 1929. The third payment is dated 8th of March, 1931 and the fourth was made within one month after that on 3rd April, 1931. 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. The present suit was instituted, as said above, on the 4th March, 1940.. There cannot be any doubt that if a fresh period of limitation could be computed from each one of the payments mentioned above, the plaintiffs' suit would be quite in time even if it is treated as a suit for obtaining a money decree against the defendants personally. The contention of the appellants is that as there is no acknowledgment in the handwriting of, or in any writing signed by, the prayer in respect of any of these payments, they could be of no avail in giving a fresh start to the period of limitation under section 20 of the Limitation Act.
# 8. It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two conditions are essential : first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the prayer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (1).But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegation made therein. The legislature has expressly declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided therefore in the first schedule to the Limitation Act. If the plaintiff's right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the court might not hold the bond to be properly attested. In these circumstances, they prayed for an amendment of the plaint which was cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph the following words were added :-
“The suit is saved from limitation so far as the personal remedy is concerned and the payments were made by the defendants on different dates as mentioned Schedule A below."
These amendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment nor proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in this suit.
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