LexSANT LAL MAHTON versus KAMALA PRASAD.
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1951 0'1. 17. 116 SUPREME COURT REPORTS SANT LAL MAHTON v. KAMALA PRASAD. [PATANJALI SAsTRI, MuKHERJEA, DAS and VMAN BosE JJ.] [1952] Indian Limitation Act (IX of 1908); s. 20 (I )-Paymen: of interest before expiry of period of limitation-Acknowledgment in writing after limitation-Whether gives fresh period of limitation-- Ack,nowledgement after institution of suit, whether sufficient. While s. 20 of the Limitation Act requires that the payment should be made before the expiration of th~ period of limitation, it does not require that the acknowledgement of the payment should also be made within that period. But it is essential that such acknowledgement, whether made before or after the period of limitation, must be in existence prior to the instittuion of the suit. An acknowledgement of the payment by the defendant in a written statement filed after the institution of the suit is not enough. Mohd. Moizaddin v. Nalini Bala (I.L.R. [1937] 2 Cal. 137), IA/ Singh Guiab Rai (J.L.R. 55 All. 280), Venkatasubbu v. Appo Sundaram (I.L.R. 17 Mad. 92), Ram PrilSad v. Mohan IA/ (AJ.R. 1923 Nag. 117), Viswanath v. Mahadeo (I;L.R. 57 Born. 453), approved. CML APPELLATE JuRISDICTION: Civil Appeal No. 81 of 1950. Appeal from a judgment and decree dated 17th March, 1944, of the High Court of Judica- ture at Patna (Fazl Ali C. J. and Beevor J.) in F. A. No. 47 of 1942, arising out of decree dated 27th February, 1942, of the Subordinate Judge of Pumea in Title Mortgage Suit No. 7 of 1940. B.. C. De (Bhabhananda· Mukherjee, with him) for the appellants. S. P .. Sinha (B. K. Saran, with him) for the respondent. 1951. October 17. The Judgment of the Court was delivered by MuKHERJEA J.-This appeal, which was originally taken to the Judicial Committee, on special leave, granted by an Order in Council dated August 2, 1946, ) f S.C.R. SUPREME COURT REPORTS 117 now stands transferred to this coun by reason of the a~lition of the jurisdiction 0£ the Privy C.Ouncil. It is directed against a judgment and decree of a Divi- sion Bench of the Patna High C.Oun dated March 17, ·'1944, affirming, on appeal, a decision of the Subordi- nate Judge of Purnea dated February 27, 1942. The appellants before us are the first party defendants in a suit, commenced by the plaintiffs respondents, for enforcement of a simple mortgage bond, 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 in favour of the plaintiffs and passed a money decree, for the amount due on the bond, personalty against the defendants first party. According to the Subordinate Judge, although the suit was instituted more than 6 year~ 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 the satisfaction of the debt, which attracted the operation of section 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but no appeal or· crOS&-Objection was filed by the plaintiffs against the refusal of the trial C.Ourt to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High C.Ourt, consisting of Fazl Ali C. J. and Beevor J., and the principal point canvass- ed on behalf of the defendants appellants was, that the trial coun was wrong in holding that the plaintiffs' claim for a personal decree was not barred by time. 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 1951 Sant LoJ.MIJbtn v. Kamla PrtU11J. . 1951 Sant Lal Mahton v. Kam/a Prasad. 'Mukherjee /. H8 SUPREME COURT REPORTS [1952] 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 conclu- sion that the bond in suit was duly attested and was eff
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