w w w . L a w y e r S e r v i c e s . i n



Mostt. Sona Devi v/s Balindra Rai

    A.F.A.D. 132 Of 1990

    Decided On, 29 September 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SYED MD. MAHFOOZ ALAM

    For the Appearing Parties: Ravi Shankar Dwivedi, Manojeshvar Prasad Sinha, Ratan Kumar Sinha, Advocates.



Judgment Text

(1.) This second appeal has been preferred by the plaintiff appellant against the judgment and decree dated 14- 2-1990 passed by Sri J. P. Paul, 3rd Additional District Judge, Siwan in Title Appeal No. 135 of 1985 affirming the judgment and decree dated 31-8-1985 passed by Sri Arun Prabhat Sinha , Additional Munsif, Siwan in Title Suit No. 53/73.

(2.) The brief facts of the case are that the plaintiffs appellants had filed Title Suit No. 53/73 for redemption of two zerpeshgi deeds dated 6/7/1926 and 7/3/1930 executed by Mostt. Badla Kuer in favour of Saryu Rai and Ramautar Rai, both sons of Narsingh Rai. The defendants contested the claim of the plaintiffs for redemption of mortgage de

Please Login To View The Full Judgment!

eds mainly on the ground that the plaintiffs - appellants have got no right of redemption as the plaintiffs' suit for redemption is barred by Section 30 and Article 61 of the New Limitation Act, 1963.

(3.) On the basis of the pleadings of both the parties, the learned trial Court framed as many as six issues which were as follows :-

(1) Is the suit as framed maintainable? (2) Have the plaintiffs got cause of action for the suit? (3) Is the suit barred by law of limitation? (4) Are the two mortgage deeds still subsisting and whether plaintiff is entitled to redeem it and get back possession of the same and also whether money was tendered? (5) Are the plaintiffs entitled to the decree as claimed? (6) To what other relief or reliefs, if any, are the plaintiffs entitled to?

(4.) From perusal of the judgment of the trial Court it appears that the trial Court considered issue Nos. 3 and 4 as the main issues and dealt with both the issues simultaneously and on consideration of the materials the trial Court came to the conclusion that first mortgage dated 6-7-1926 cannot be redeemed after the year 1971 as according to the Limitation Act, 1963 the period of limitation which was 30 years plus grace period given in the deed expired in the year, 1971. Likewise, the learned trial Court has held that the redemption of second mortgage deed dated 7-3-1930 is also barred by law of limitation as the limitation period for redemption of the mortgage deed expired on 7-3-1972 after giving grace period. Accordingly, the trial Court held that both the mortgage deeds cannot be redeemed as the same are barred by law of limitation and on that basis the trial Court held that the suit of the plaintiffs-appellants is not maintainable and hence the trial Court dismissed the suit.

(5.) The plaintiffs-appellants preferred appeal against the judgment and decree of the trial Court which was numbered as Title Appeal No. 135 of 1985. On 14th February, 1990 the said appeal was disposed of by 3rd Additional District Judge, Siwan whereby the learned 3rd Additional District Judge dismissed the appeal of the plaintiffs-appellants and confirmed the finding of the trial Court that both the mortgage deeds cannot be redeemed in view of the fact that the redemption of the same has become time barred.

(6.) The plaintiffs-appellants have challenged the findings of the trial Court as well as the appellate Court in this appeal on the ground that the findings of both the Courts are not in accordance with law.

(7.) At the time of admission of this appeal, the substantial question of law was formulated which is as follows :- Whether the limitation will be saved by virtue of acknowledgment contained in the sale deed (Ext. 1)?

(8.) The contention of the learned Advocate of the appellants is that although it is admitted that under the provisions of the New Limitation Act, 1963, the period of limitation for filing suit for redemption of mortgage is reduced to 30 years instead of 60 years with 7 years grace period but under Section 18 of the Limitation Act, 1963 a fresh period of limitation will start from the date of acknowledgment of liability by the party and so in this case the fresh period of limitation will start from 15-3-1944 when Gaya Rai son of Badla Kuer executed sale deed (Ext. 1) in favour of Ram Autar Rai, Babu Gyan Rai, Hem Narayan Rai and Daroga Rai (original plaintiff) and acknowledged the liability of mortgage. In this regard the Advocate of the plaintiffs appellants also placed reliance upon the decisions reported in AIR 1989 Supreme Court Page 1775 (Reet Mohinder Singh v. Mohinder Prakash and others); AIR 1989 Kerala Page 129 (Raghavan Nair v. Deputy Director, Enforcement, Directorate) and AIR 1971 Madras Page 485 (Avadi, Ammal and Others v. K. L. S. Subburamier and others).

(9.) From perusal of the judgment of the appellate Court it appears that although the appellate Court has referred the decision (AIR 1989 Supreme Court 1775) but has not placed reliance upon the said decision. I am also of the view that the said decision does not apply in this case because in that case the acknowledgment was made by the son of the original mortgagee and here in this case the acknowledgment has been made by the mortgagor which is not the spirit of Section 18 of the Limitation Act.

(10.) Section 18 of the Limitation Act, 1963 runs as follows :-

"Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed." From plain reading of this section it appears that this section will apply against the person who makes acknowledgment of such liability in respect of any property or right. Here in this case, defendant respondent has not made any such acknowledgment of liability and as such any averment made in the deed of the year, 1944 by the mortgagor will not be binding for the defendants and as such, the period of limitation will not be extended due to the execution of the sale deed in the year, 1944. As regards other two decisions reported in AIR 1989 Kerala 129 and AIR 1971 Madras 485, 1 am of the view that both these decisions are not relevant in this appeal and so, I do not feel it to refer the above two decisions. I further find that the decision relied upon by the learned first appellate Court i.e. AIR 1981 Patna 131 is relevant in this case and the first appellate Court has rightly placed reliance upon the said decision.

(11.) In such view of the matter. I am of the view that the findings of the trial Court as well as first appellate Court are correct and there is no need of any interference in the said findings. The findings of the trial Court as well as the first appellate Court that the suit for redemption is barred by limitation are hereby upheld. Accordingly, I hold that this second appeal has no merit and as such the same is hereby dismissed but without costs. Appeal dismissed
O R