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Collector Of Mirzapur vs Dawan Singh And Ors.

High Court Of Judicature at Allahabad|22 May, 1908


JUDGMENT John Stanley, C.J. and Banerji, J.
1. The suit which has given rise to this appeal was brought by the plaintiff appellant to recover the amount of a mortgage bond, dated the 17th of April 1899. It was a registered document, and provided that the amount secured by it should be paid by instalments, and that in case of default the mortgagee would be entitled to take possession. It further provided that should there be any loss in the recovery of the amount due or in delivery of possession of the mortgaged land, the creditor would have power to realise the amount secured by the bond with interest at 1 per cent. from the date of the cause of action till repayment, either from the person or from the property, movable or immovable, of the debtor, or from the property mortgaged. The first instalment was payable on the 16th of December 1899. The present suit was brought on the 15th of December 1905. The Court below has dismissed the suit, holding it to be barred by limitation, and has referred to the case of Ram Narain v. Kamta Singh (1908) I.L.R. 26 All. 138 as an authority in support of its view. That ruling in our opinion has no bearing whatever on the present case. That was a suit for arrears of rent, for which there is specific provision in Schedule II of the Limitation Act. The present suit is one for money payable under a mortgage bond. As the property mortgaged consisted of mortgagee rights, it was assumed, according to the ruling in force at the time when the suit was brought, that the mortgaged property could not be sold, but there is the clear covenant in the bond that the money would be recoverable in case of default in delivering possession from the person and other property of the mortgagors. This was, in our opinion, a suit which was governed by Article 116 of Schedule II, being in substance a suit for compensation for breach of contract, namely, the contract to deliver possession and pay the amount secured by the bond in case of default in delivering possession. The bond being a registered instrument, the period of limitation underthat article was six years, and the suit was therefore within time. This view is in consonance with the ruling of a full Bench of this Court in Husain Ali Khan v. Hafiz Ali Khan (1881) I.L.R. All. 600. The result is that we allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts.
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Collector Of Mirzapur vs Dawan Singh And Ors.


High Court Of Judicature at Allahabad

22 May, 1908
  • J Stanley
  • Banerji