Mundo Singh and Another vs Mahanth Krishna Dayal Gir and Another

Das, J.—Two points have been urged before us; first, that the suit is barred by limitation, and secondly, that the finding as to legal necessity is not sufficient. The learned Vakil was under the impression that the bond sued upon was not registered in accordance with law: but it appears that the bond is a registered one, and it must follow that the Plaintiff had six years from the date of the cause of action. It was, however, strongly contended by the learned Vakil that the Plaintiff''s cause of action actually arose on the 18th June 1913 and not on the 19th June 1915 as the plaintiff alleges. In order to determine this point, it must be remembered that the bond sued upon is an instalment bond in common form which provided that the first instalment should be paid on the 18th June 1913, the second on the 18th June 1914 and the subsequent instalments on the 19th June of every succeeding year. The Plaintiff''s case is that the first two instalments were paid by the Defendants, and the learned Judge in the Court below has found that they were in fact paid. The Plaintiff contends that the third instalment was not paid, and that his cause of action arose on the 19th June 1915. It is conceded that the suit is well within time if the cause of action did arise on the 19th June 1915. The case of the Defendants, on the other hand, is that they never paid any of the instalments in respect of the bond sued upon, and that the cause of action arose on the 18th June 1913, in which case the suit must be held to be time-barred. As I have said before the learned Judge in the Court below has found that the first two instalments were in fact paid by the Defendants to the Plaintiff. The finding of the learned Judge on this point is a finding of fact and is binding on us in second Appeal.

The point of law argued by the learned Vakil is this: that it was not open to the learned Judge to find that any of the instalments was in fact paid by the Defendants, unless the fact of the payment appeared in the handwriting of the person actually paying, and the learned Vakil relied on Section 20 of the Limitation Act. The answer to the argument is that Section 20 has nothing whatever to do with the case. Section 20 applies where the cause of action has already arisen, and the Plaintiff is seeking to have a fresh period of limitation computed from the time when a payment was made by the debtor. Section 20 lays down that he is not entitled to a fresh period unless, where the Plaintiff relies on the part payment of the principal of a debt, the fact of the payment appears in the handwriting of the person making the same. But, if the Plaintiff''s case be true, the cause of action did not arise till a year after the payment of the second instalment by the Defendants. The provision as to limitation applicable to this case is to be found in Article 75 of the Limitation Act which gives the Plaintiff three years'' time (in the case of a registered bond the period would be six years) to bring a suit to enforce a bond of this nature from the date when the default is made. The learned Judge bas found as a fact that the default was made on the 19th June 1915. I have no hesitation whatever in deciding against the Appellants on the first point urged before us by the learned Vakil.

The other point is equally without merit. It has been found by the Courts below that the instalment bond was executed in order to secure to the Plaintiff the payment of rent that had already accrued due to the Plaintiff. In my opinion, the benefit to the family is apparent on the face of the transaction. They were liable for a large sum of money, and the Plaintiff agreed to accept payment by easy instalments spread over twelve years.

The appeal must be dismissed1 with costs.

Macpherson, J.

I agree.