Kempamma vs Racha Setty and Others

Chandrasekhara Aiyar, J.—This second appeal preferred by the plaintiff raises a question of limitation with reference to a mortgage and we

are concerned only with item 3. The suit was dismissed as regards this item on the ground that it was barred by limitation. The mortgage was on

20th August, 1919. In 1920, this item 3 was sold to the fifth defendant under Ex. D-1. Items 2 and 4 were sold in favour of the second defendant

in 1937 under Ex. D-3. To save the suit from the bar of limitation, a payment of Rs. 36 by the first defendant''s father as the mortgagor, made on

12th August, 1931, and endorsed on the deed was relied upon. Defendants 2 and 5 contested the suit, raising various defences. The plea raised by

the fifth defendant that the suit was barred as regards item 3 because the payment by the father was long after its alienation in his favour, was

accepted by the Courts below.

There is a difference between an acknowledgment of liability u/s 19 and a payment u/s 20 of the Limitation Act. On the date of the payment,

namely, 12th August, 1931, the first defendant''s father remained the mortgagor, having possession of items 1, 2 and 4, though he had parted with

item 3 long before. The Full Bench decision in Pavayi and Others Vs. Palanivela Goundan and Others, gives rise to some doubt whether in such a

case it could not be successfully urged that the suit was barred, but two later decisions have made it abundantly clear that, if a payment is made u/s

20 of the Act by the person liable to pay, a fresh period of limitation would start in favour of the creditor. The decisions are Thayyanayaki Ammal

by agent Viswalingam Chettiar Vs. Sundarappa alias Apath Sahaya Kandiar, by his mother and guardian Alamelu Ammal (dead) and Others, and

R. Narayana Reddiar Vs. Venkatesa Reddiar and Others, . The second decision accepts the interpretation of the Full Bench decision, given by

Wadsworth and Patanjali Sastri, JJ. The C ief Justice delivered the judgment in the Full Bench case as well as in R. Narayana Reddiar Vs.

Venkatesa Reddiar and Others, . The principle is that so long as the mortgagor has not parted with lis interest in the mortgaged properties and

continues to be liable under the mortgage, he can make a payment which will serve u/s 20 of the Limitation Act to start a fresh period of limitation.

The view taken by the lower Courts is wrong and this appeal will stand allowed as regards item 3 with costs payable by the fifth defendant

throughout, proportionate to the value of item 3.

It may be mentioned that the respondents did not appear at the hearing of this appeal. The fourth respondent is dead. The fifth respondent

disowned any interest in the suit properties. Respondents 1 and 3 were personally served and the second respondent refused notice.