This is first civil appeal against the judgment and. Decree, dated 19 May, 1991 passed in Suit No.2256/85 by Defence Housing Authority v. Commander (Retd.) M.A. Ansari whereby suit for recovery of Rs.58,287 was dismissed being time-barred as such not maintainable.
2. The brief facts of case are that the appellant filed suit for recovery of Rs.58,287 against the respondent/defendant stating that an amount of Rs.20,000 was advanced as loan to the respondent/defendant on 11-11-1965 against his Plot No.A-A, 1st North-Street, Defence Society with interest at Rs.6-1/4 per annum of the borrowed sum on execution of a promissory note and by deposit of title deed of abovesaid property as an equitable mortgage but the respondent/defendant committed default in the payment of loan, therefore, legal notice dated 13-11-1983 was sent to- respondent/defendant but no payment was made therefore the suit was filed for recovery of said sum. The respondent/defendant resisted the suit stating that the suit was time-barred and, that the alleged promissory note being unstamped was inadmissible in evidence and that alleged document was not a title deed.
3. On the pleadings of the parties the learned Senior Civil Judge settled the following issues:---
(1) Whether the suit is time-barred?
(2) Whether suit is not maintainable in law?
(3) What should the decree be?
4. On 21-10-1989 learned counsel for the respondent moved an application under Order 14, rule 2, C.P.C. Praying therein that said two legal issues be tried as preliminary. The learned Senior Civilth Judge after hearing the learned counsel for the parties held that the suit was time-barred, consequently same was dismissed.
5. I have heard Mr. Abdul Saeed Khan Ghouri learned counsel for appellant and Mr. Abul Khair learned counsel for the respondent and perused therecord and proceedings of the case.
6. Mr. Abdul Saeed Khan Ghouri has argued that Article 147 read with section 18 of Limitation Act was applicable in the instant case therefore the suit was not time-barred and' the findings of the learned Senior Civil Judge was erroneous in law.
7. Mr. Abul Khali--- learned counsel for respondent has argued that the suit has been based on the alleged promissory note dated 11-11-1965 and further that no title deed was deposited by the respondent, therefore, the Article 59 of Limitation Act would be applicable. He has further e9ntended that the present suit being not based on mortgage for foreclosure or sale, the Article 147 would not be attracted.
8. Admittedly in para. 2 of the plaint the appellant/plaintiff has stated that advance loan for sum-of Rs.20,000 was borrowed by the respondent from the appellant on 11-11-1965 who executed pronote and deposited title deed. Article 147 of Limitation Act is restricted to the suits on mortgages whereunder the mortgagee is entitled to either to the remedy of foreclosure or sale and not to enforce payment of money charged upon immovable property which suit would be governed by Article 132 of Limitation Act and the cause of action would 'arise for the said suit when the money sued for would become due. In the instant case only photostat copy of memorandum for deposit of title deeds has been filed by the appellant. However no title deeds have been produced as stated in the said memorandum by the appellants, therefore, no charge could be created in respect of property though stated in the photo copy of memorandum Annexure ' A . In the circumstances the suit could not be said to be based on deposit of title deeds whereby charge over the said property could be created, therefore, neither Article 147 nor Article 132 of Limitation Act would be attracted. Next contention of the learned counsel for the appellant is that the suit is not time --barred as section 18 of the Limitation Act would be applicable because the respondent/defendant has by means of fraud kept the appellants from the knowledge of their right to recover the amount. Perusal of plaints would show that nowhere appellants/plaintiffs have pleaded the fraud against the respondent/defendant and has also not stated that they were kept in the dark from making any claim in respect of their rights to recover the said amount paid to the respondent/defendant, therefore, provisions of section 18 of the Limitation Act would not be attracted. The appellants have also produced photo copy of the promissory' note which mention about the receipt of sum of Rs.20,000 by the respondent to be payable on demand. In base of promissory note payable on 8 demand Article 73 of the Limitation Act would be applicable and the time would begin to run from the date of the promissory note. The period of limitation under the said Article is three years. Accordingly the instant suit for recovery of said amount on the basis of the pronote on demand should have been filed within three years from the date of promissory note i.e. 11-11-1965 but was filed on 27-9-1984, therefore, was time-barred. I do not find any merit in the contention raised by the learned counsel for appellants, consequently appeal is dismissed with costs.