1. This is an appeal from a decision of the Additional Subordinate Judge of Berhampur by which the learned Judge had dismissed the plaintiff's application for a decree under Order 34, Rule 6 of the Code. There were two defendants in the suit, the mortgagors who executed a mortgage in favour of the plaintiff in the year 1908. One of these, namely, defendant 1, had made a number of payments on account of the mortgage and had made endorsements in respect thereof on the bond stating that on account of interest these amounts were being paid. These payments continued right down to the year 1323. On 10th July 1920 the plaintiff instituted a suit upon the mortgage and thereafter having obtained a decree purchased the mortgaged property on 16th June 1922 and obtained sale certificate therefore on 25th July 1922. Thereafter on 24th November 1924, the plaintiff made the application under Order 34, Rule 6 of the Code. The learned Judge refused the application in so far as defendant 1 was concerned upon the ground that although the said defendant had made the payments aforesaid the last of those payments had been made by him in 1323 which was more than three years before the institution of the suit. The learned Judge was of opinion that in view of the decision of the Judicial Committee in the case of Ganesh Lal v. Khetramohan Mahapatra AIR 1926 PC 56, Article 66, Lim. Act, applied to the application made under the said rule. It is true that there are certain observations in that decision which lend support to the learned Judge's view. But as has been pointed out in several cases in this Court since that decision was passed, amongst which may be mentioned the case of Balbhaddar Singh v. Budri Sah AIR 1926 PC 46, the said observations can hardly be taken as deciding the question as to whether it was Art. 67 or Article 116 that should apply. We are of opinion that having regard to the uniform trend of authorities which have laid down that six years' limitation provided for in Art. 116, Lim. Act applies to the case, the learned Judge's decision, in so far as defendant 1 is concerned, cannot be supported and must accordingly be set aside.
2. Defendant 2's son was a minor and was represented in this appeal by his mother as his guardian. He has now applied to appear as a major and has been allowed to appear as such. As regards him the learned Judge held that it had not been proved that defendant 1 made the payments not only for himself but also on his behalf. The learned advocate appearing on behalf of the plaintiff has drawn our attention to the written statement which was filed by defendant 2's son in the mortgage suit, in which he stated that defendant 1 who was the elder brother of his father was the karta of the family of the defendants; that he used to look after all the properties of the defendants and that with the evil object of depriving defendant 2 of his properties, defendant 1 colluded with the plaintiff and got a mortgage deed executed by defendant 2 when he was in a drunken state. It has been argued that this statement is an admission made by defendant 2's son that defendant 1 was the karta of the defendants' family; and upon this argument it has been contended that it was not necessary for the plaintiff to adduce any evidence for the purpose of showing that defendant 1 had authority to make the payments on behalf of defendant 2's son. Our attention has also been drawn to the objection which the son of defendant 2 preferred to the application for a decree under Order 34, Rule 6, and in which he made a statement, vide para. 2 of the grounds, that since the death of his father he had been living separately and in separate mess from defendant 1. It has been argued that from this statement it should be inferred that it was an admission or at least an implied admission that the two defendants lived jointly at the time of the death of defendant 2, the death of defendant 2 having taken place in August 1922.
3. It has been argued that payment appears on the bond as having been made by defendant 1 in 1321 when defendant 2 was alive and which date would be within six years from the date on which the suit was instituted. We have considered these arguments with care, but we are not able to hold that merely because of these statements, which may be explained upon more grounds than one, it was not the duty of the plaintiff to give some definite evidence showing that there was some authority on the part of defendant 1 to make the payments on behalf of defendant 2 or of his son. The pleadings no doubt are to a certain extent at variance with the evidence which the son of defendant 2 has adduced in the present case that his father was separate in mess from defendant 1 ever since 1314. That statement may or may not be correct. The learned Judge's argument that there were two mortgage deeds which showed that the two defendants were not joint is also not very convincing in the face of the fact the those documents came into existence after the date of the payment to which we have referred. It is also true that defendant 1 was allowed to a certain extent to act on behalf of defendant 2 in matters of execution of mortgage, taking of loan and things of that sort. But these circumstances do not necessarily mean that in the matter of payments which defendant 1 made and which would operate as acknowledgment of the debt, he had any authority to make such payments on behalf of defendant 2. For these reasons we are of opinion that in so far as the learned Judge dismissed the application for a decree under Order 34, Rule 6 of the Code as against defendant 2's son he was right.
4. The result is that in our opinion the appeal is allowed in part. The decree of the learned Judge dismissing the application as against defendant 1 should be set aside and in lieu thereof a decree should be passed under Order 34, Rule 6 of the Code in the usual terms as against the said defendant only. The decree of the learned Judge in other respects will stand. No order is made as to costs.