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Judgment
Menon, J.—This is an appeal by the 10th Defendant in O.S. No. 262 of 1120 of the Court of the District Munsiff, Moovattupuzha, and his contention is that the suit is barred by limitation.
The suit is based on a chitty security bond and it is common ground that the time began to run from 25-12-1100 and that the plaint filed on 9-6-1120 was clearly out of time but for certain acknowledgments made by the first Defendant, the executant of the security bond. It is also agreed that the first Defendant had parted with all his rights in respect of the items in which the 10th Defendant is interested prior to all the acknowledgments that could possibly be pressed into service for the purpose of saving limitation.
The only question, therefore, is whether the fact that the first Defendant had still the equity of redemption over some of the items covered by the security bond is sufficient to make his acknowledgment effective as far as the items in which he was no longer interested on the date of the acknowledgment are concerned. The identical question was answered in the negative by their Lordships of the Privy Council in - AIR 1945 67 (Privy Council) . That the sale effected in that case was not of all the items included in the mortgage but only of some of them is clear from the words underlined (here in (SIC)) by us in the following extract from Lord Atkin''s judgment:
On 30-5-1914 the four brothers and a sister who between them at that date possessed the entire property in the lands in question subject to the mortgages sold to the Respondent R.M. Skinner ''certain of the mortgaged lands'', on the terms mentioned in the deed of that date.
Attempts to whittle down the effect of - AIR 1945 67 (Privy Council) though some times made have never found favour with the Courts in this country. In- Aravapalli Subbi Setti and Another Vs. Burle Lakshminarasamma and Others, , for example, the two contentions raised were:
(1) that the mortgagor had not parted with all the property hypothecated at the time he made the acknowledgment; and
(2) that the personal remedy against the mortgagor was still alive on the date of the acknowledgment.
The Court seems to have felt no hesitation to reject both those contentions on the strength of - AIR 1945 67 (Privy Council) .
The decision in - AIR 1945 67 (Privy Council) has recently been discussed and followed by a Full Bench of this Court in - Kunchi Pillai v. Bunny Rebella AIR 1953 KER 196 (C) and the view we adopt in accepting the contention of the Appellant can be traced in a continuous line of judicial reasoning through that decision - AIR 1945 67 (Privy Council) and the judgment of Mukerji, J. in - Surjiram v. Barhamdeo 1 Cal LJ 337 (D), to Lord Westbury''s insistence in - Bolding v. Lane (1863) 32 LJ Ch 219 (E) that the principles of natural justice should find some place even in the arid regions of statutory construction.
In the light of what is stated above we allow the appeal with costs.
There is a memorandum of objections filed by the first and second Respondents. The same is dismissed with costs subject to the finding of the lower Court regarding the sale and delivery of item No. 2 of O.S. No. 2 of 1111 of the District Munsiff''s Court, Moovattupuzha - an item in which the Appellant is not interested - being set aside and left open for future adjudication.