1884 (12) TMI 4 - Other - Indian Laws

Limitation Act 1871: Personal Remedy Time-Barred vs. Property Enforcement

Ram Din Versus Kalka Prasad

The Privy Council held that the personal remedy sought against the mortgagor was time-barred under the Limitation Act of 1871, despite the mortgage ... - Issues:Enforcement of mortgage against mortgagor, applicability of Limitation Act of 1871 on personal remedy sought against mortgagor, interpretation of the mortgage transaction, determination of the period of limitation for personal remedy against mortgagor.Analysis:The judgment involves a mortgage suit where the mortgagee is seeking to enforce a mortgage against the mortgagor for non-payment of principal and interest. The mortgagor does not contest the mortgage but argues that the personal remedy sought against him and his other property is time-barred under the Limitation Act of 1871. The mortgage transaction is straightforward, with the mortgagor pledging certain property for a mortgage debt with specific repayment terms. The key issue is whether the personal remedy against the mortgagor is barred by the Act, despite the mortgage remaining enforceable against the mortgaged property.The High Court held that the personal demand was time-barred, while the District Court disagreed, stating that a single period of 12 years applied to both the mortgage of fixed property and the personal security. However, the Privy Council, comprising Fitzgerald, B. Peacock, R.P. Collier, R. Couch, and A. Hobhouse, JJ., opined that the District Judge's interpretation was legally incorrect. They emphasized the distinction between the remedies sought by the plaintiff: one against the mortgaged property and the other against the person and other property of the defendant. The Council affirmed that the Act's limitation provisions applied to the specific demand for a personal remedy against the defendant, barring the personal remedy while allowing enforcement against the mortgaged property.The Council analyzed the Act's language, noting that different periods of limitation applied to various types of claims, including simple money demands, bills of exchange, and suits by mortgagors. They specifically addressed the argument that a 12-year period under Article 132 of the Act applied to both the personal remedy and the mortgaged property, rejecting this interpretation to avoid inconsistencies. The Council concluded that the High Court's decision was correct, affirming the decree appealed from and deciding no costs would be awarded due to the respondent's absence.In a final note, the Council indicated that their opinion on the appeal extended to a separate appeal concerning a mortgage bond from 1871, providing a comprehensive interpretation of the Limitation Act's application to mortgage suits and personal remedies sought against mortgagors.