JUDGMENT
Norman Macleod, Kt., C.J.
1. This suit was filed by the plaintiffs to recover on a mortgage bond the balance due. The mortgage deed was passed on October 22, 1902. It was for Rs. 1200, and it provided for the payment of Rs. 1200 by twelve annual instalments of Rs. 100 each. In case of default of payment of any one instalment the mortgagors agreed to pay the whole amount remaining due at once. There was a further clause to the effect that the defendants should pay interest at fifteen per cent, on the amount accrued due from the date of default until the date of payment. The defendant only paid Rs. 44 during 1902 and 1903, In 1905 the mortgagee filed Suit No. 173 of 1905 to recover the amount of the first two instalments and obtained a decree for Rs. 180. No evidence was given to show whether anything was paid under the decree. Then the mortgagee waited until May 20, 1917, when he filed this suit for the remaining ten instalments. Two main issues were raised : whether the plaintiffs’ suit was in time; and whether the suit was barred by Order II, Rule 2, of the Civil Procedure Code.
2. Now under the terms of the mortgage deed in the case of default the whole amount was payable, and consequently a suit could be brought by the mortgagee to enforce payment of the money charged upon the immoveable property within twelve years from the default because the money became due on such default. It seems to have been urged that because a party to whom money is due is not bound to file a suit, therefore time is not running against him. If that argument were to hold good, it would nullify the Statute of Limitation, for no one is obliged, to bring an action. What the Statute of Limitation lays down is that if a party has a right of action, that right can only be allowed to remain in existence for a prescribed time. If he does not choose to bring a suit within the time prescribed then his right of action is gone. Therefore it would appear that certainly in 1905, the plaintiffs had a right of action to sue for the whole of the mortgage amount, and as they only sued for two instalments, when they ought to have sued for the whole amount, any later suit to recover the balance was barred under Order II, Rule 2 The learned Judge found it unnecessary to find on that issue as he found on the question of limitation that the suit was barred. But as a matter of fact the two issues are really connected with each other, because if the right of action to sue for the whole amount arose in 1905, when the first default was made, then clearly the present suit was barred by limitation. It was also barred under Order II, Rule 2, because plaintiffs chose to file a suit in 1905 for two instalments when they ought to have claimed the whole of the relief to which they were then entitled.
3. We have been referred to various decisions. In Gaya Din v. Jhumman Lal (1915) I.L.R. 37 All. 400 F.B., a Full Bench held that if in a mortgage repayable by instalments the whole amount could be recovered in the case of default, the mortgage money became due on such default and Article 132 of Schedule I of the Indian Limitation Act was applicable. Again in Nathi v. Tursi (1921) I.L.R. 43 All. 671, the same point arose in a case where a mortgage bond provided a period for repayment, but also provided that if the borrower made default in the payment of any instalment of interest, the creditor could sue for the whole amount due. It was held that limitation, under Article 132 of the First Schedule to the Indian Limitation Act, 1908, began to run from the date of the first default, that being the date when according to the terms of the bond the whole money became due. In the judgment their Lordships say (p. 672):
The terms of the bond may be compendiously stated as providing that if the borrower makes default in the payment of any instalment of interest the lender can sue for the whole amount, although a fixed period is provided for repayment; if the borrower repays regularly according to the terms of the bond It is impossible to hold, whether you call it an option or not that a creditor has a right to sue and yet that the money is not due. It is merely a question of contract The borrower has agreed that the creditor shall have the right to sue for the whole of the principal and interest ‘become due.
4. Further they say:
The liability to pay, or in other words, the test whether money becomes due or not, is the obligation which the borrower has taken, upon himself by his signature to the written document. It cannot depend on the volition of the creditor. The volition of the creditor merely decides the remedy which he chooses to seek. No mortgagee or creditor is ‘bound to sue.’
5. We prefer to follow those cases rather than the contrary decision in Narna v. Ammani Amma (1916) I.L.R. 39 Mad. 981. They are also in conformity with the decision of this Court in Raichand v. Dhondo which no doubt was a case relating to the execution of an instalment decree, but the principle applicable is the same. We have also been referred to the decision in Amrit v. Govind of Mr. Justice Heaton and myself where we held that the evidence showed that the parties had agreed that no advantage should be taken of the clause in the decree which enabled the creditor to take out execution for the whole amount.
6. But there is no evidence in this case that there was an arrangement between the mortgagor and mortgagee that in spite of the default the clause in the mortgage bond enabling the mortgagee to sue for the whole amount should be treated as a nullity. In fact there is no evidence whatever of any communication between the plaintiffs and the defendant with regard to this mortgage after the first payment was made of Rs. 44. We do not know whether the defendant appeared in the suit which was filed in 1905, and it is impossible for us to find anything in the record from which we could infer that there was any agreement between the parties which would enable us to hold that it was arranged that the mortgage money should not be considered as having become due when default was made in paying instalments.
7. The result must be that we think that the decision of the lower Court on the question of limitation was correct. It follows that the appeal must be dismissed with costs.
Crump, J.
8. I concur.
