Ramautar Singh vs Thakur Prasad Singh

Fazl Ali, J.—It appears that the petitioner obtained a mortgage decree against the opposite party sometime in 1929 and this decree was made final on 15th February 1933. On various dates in February and April 1930, certain payments were made by the opposite party to the petitioner, but they were not credited and no reference was made to them in the final decree. The total of these payments comes to Rs. 40 and it also appears that further payments were made after the passing of the final decree and the total of these payments comes to Rs. 135 odd. As these payments also were not certified the opposite party brought a suit for recovery of the entire amount and the suit has been decreed by the Court below.

Mr. L.K. Jha, who appears for the petitioner, assails the decree of the Court below on the ground that the opposite party not having raised the point either at the time of the preparation of the final decree on in the execution proceedings cannot maintain the suit. It appears to me that this contention must fail as the weight of authority is against it: see Virara ghava Reddi v. Subbakka, (1892) 5 Mad 397 (FB) and Mahbub Ali v. Muhammad Husain, 1927 All 710 = 104 IC 419 = 50 All 111. A serious point however arises with regard to the sum of Rs. 40 which was admittedly paid by the opposite party to the petitioner more than three years before the institution of the suit. The petitioner''s contention is that this amount cannot be recovered as the claim is barred by limitation. In order to determine whether the claim is or is not barred by limitation, it has to be found out what is the nature of the claim and when the cause of action arose. Referring to the plaint it would appear that the cause of action was the receipt by the petitioner to his use and that being so the period of limitation will run from the date of the payment which was more than three years beyond the institution of the suit. It is urged on behalf of the opposite party that the limitation will run from the date when the petitioner failed to credit the amount in favour of the opposite party at the time of the preparation of the final decree and for that proposition reliance is placed on Medai Kaliani In re, (1907) 30 Mad 545; but having regard to the circumstances of the case and the averment in the plaint, it appears to me that the payments made by the opposite party to the extent of Rs. 40 are barred by limitation.

I would therefore modify the decree of the Court below by reducing it by Rs. 40. The opposite party will be entitled to proportionate costs only in the Court below as well as in this Court. Hearing fee one gold mohur.