Madras High Court
Askaram Sowkar vs Venkataswami Naidu And Two Ors. on 25 November, 1920
Equivalent citations: (1921)ILR 44MAD544
JUDGMENT
1. This is an Appeal from the Order of the City Civil Court Judge dismissing an application by the decree-holder for execution against the original mortgagors, defendants Nos. 1 and 2 and the third defendant who is the auction purchaser of the interest of the mortgagors. The appeal is only pressed as regards the application against the third defendant, the auction-purchaser. He undoubtedly made, a payment of Rs. 28-13-0 on 28th August 1918 for which he obtained a receipt and of this sum Rs. 23-12-0 was due for costs. In order to save limitation this payment must have been made for interest as such but the learned Judge has found that it was not made for interest. No other explanation is given as to why the additional Rs. 5-1-0 was paid and that sum amounts to very nearly three months' interest, which was the amount of interest due up to the time fixed for payment by the decree, and we think that in the circumstances the natural and proper inference is that the payment was made for interest as such. if that be no, we have a payment by the auction-purchaser for interest as such. Now, according to the decisions, he is a person liable to pay within the meaning of Section 20 of the Limitation Act, and this has been decided in England with reference to the identical language of the English Statute. It wag decided in Bolding v. Lane (1863) 1 De. G.J. and Sm., 122, and this proposition was affirmed and explained by Lord Westbury in Chinnery v. Evans (1864) 11 H.L, Cas., 115 at 136. It was held in that case that the second mortgagee was the person liable to pay the first mortgagee on the ground that he could only get the property by redeeming the first mortgagee and Lord WESTBURY Says:
What was decided in Bolding v. Lane (1863) 1 De. G.J. and Sm., 122 was this: that the words the person by whom the same is payable, or his agent. which are practically identical with the words of our section:
were words of such large import and meaning that they would not only comprehend the mortgagor and his personal representatives, upon whom the contract would be personally binding, but would also include the second or the third mortgagee, by whom the principal and interest due to the first mortgagee might, with propriety, be said to be payable, inasmuch as the estate and right of the second mortgagee was subject and posterior to that of the first mortgagee, and he would be entitled to redeem the first mortgagee upon the payment of the principal and interest.
2. Now, these Words of Lord Westbury exactly apply just as much to the case of the auction-purchaser of the mortgagor's interest. We thought it better to go to the fountain head of authority upon which this proposition rests though no doubt there may be abundant later cases upon which the decision might be rested.
3. For these reasons the Appeal must be allowed and the order set aside and execution directed with costs here and below.