Madras High Court
Pena Parayan Ambalam vs Venkatachalam Chettiar And Ors. on 16 April, 1959
Equivalent citations: (1960)1MLJ346
JUDGMENT Ramaswami, J.
1. There is much substance in the contention raised by Mr. Natesan that an acknowledgment in a sale proclamation about the subsisting character of a mortgage by the decree-holder who ultimately became an auction-purchaser and purchased the property for low value on the foot that it was being bought subject to the subsisting mortgage would operate to save limitation in so far as that mortgage is concerned. In this contention he is supported by the decision of this Court in Krishnayya v. Venkatappiah and Ors. A.I.R. 1925 Mad. 134, the decision of the Allahabad High Court in Jugal Kishore v. Fakhruddin (1906) I.L.R. 29 All. 90, and a decision of a single Judge in Bombay High Court in Fakirchand Janakiram v. Narmada Bai I.L.R. (1943) Bom. 701. The learned advocate rightly points out that the decision of Lukur, J., was subsequently reversed in a Letters Patent Appeal reported in Fakirchand Janakiram v. Narmada Bai A.I.R. 1948 Bom. 125. If I have to decide this matter, I shall be greatly inclined to uphold the contention of Mr. Natesan that the statement in the sale proclamation by the decree-holder who became ultimately the auction-purchaser and the purchase is on the foot of the statement would operate as acknowledgment to save limitation.
2. But, unfortunately, even if I hold this point in favour of Mr. Natesan, he has got other obstacles in the way, namely, that after allowing for the period of time saved by Ordinance V of 1953 this suit should have been filed on 16th November, 1953, instead of on 1st July, 1955, as has been done.
3. The appellant has, no doubt, sought to invoke the aid of Section 17 of the Limitation Act. But it is now settled law that it can be invoked only by the actual person disabled and not by the assignee, Vide Thayammal v. Rangaswami (1955) 2 M.L.J. 426 : I.L.R. (1956) Mad. 182 : A.I.R. 1956 Mad. 15. It is a purely personal exemption which will not apply here.
4. This Second Appeal fails and is dismissed, but without costs. No leave.