Madhavan Nair, J.

1. It is not necessary for the purposes of this appeal to examine the reasoning of the learned judges of the courts in India as to when exactly the time began to run, whether from the time when the money became due under the mortgage bonds, or from the dates of payments made by the plaintiff, as in either case the period had expired and, further, the question in this particular form was not presented for their Lordships consideration, nor does it arise in the view that they take of the ground on which their decision in this case should be based.

2. The position taken up by the plaintiff in the plaint, that the cause of action for the recovery of the amount by enforcement of the charge accrued to him on the date on which their Lordships of the Privy Council delivered their judgment on the appeal, i.e., April 20, 1931, was not maintained by him before the High Court, where it was contended on his behalf, relying on Sub-section 2 of Section 20 of the Indian Limitation Act, that the suit is within time because of certain payments alleged to have been appropriated by the defendants during their possession. Section 20, Sub-section 2, of the Limitation Act is as follows: Where mortgaged land is in the possession of the mortgagee, the receipt of rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section (1.) which deals with the effect of payment of interest as such or part payment of principal before the expiration of the period of limitation. The learned judges refused permission to the plaintiff to raise this ground as it was a new one raised for the first time in appeal, and required for its decision investigation of new facts. It may be stated that their Lordships have not been able to appreciate the significance of this new point raised by the appellant, but it is not necessary for them to consider it, or the question whether or not the High Court was right in refusing him permission to raise it, as Mr. Wallach does not now press it before the Board, his sole argument being that a charge was created in favour of the plaintiff by the decree passed by the Subordinate Judge of Mohanlalgang in suit No. 13/39 (the suit for foreclosure) on May 27, 1927, and the present suit having been instituted on July 31, 1931, is well within the 12 years period of limitation. It was also contended before the High Court that a charge had been created in favour of the plaintiff by virtue of the judgment passed by the learned Subordinate Judge of Lucknow, but the contention was rejected, the learned judges stating, amongst other things, that the effect of the decision of the Subordinate Judge was merely that he declared that the plaintiff has a right to recover the amount due by enforcing his claim in a separate suit."

3. The short question for their Lordships to consider is whether the decree passed by the Subordinate Judge created a charge in favour of the plaintiff for, if it created a charge, it is not disputed that the suit is in time. Mr. Rewcastle, counsel for the respondents, has argued that the decree only declared a charge which had existed before, but did not create one. Their Lordships are unable to accept this argument. Attention has already been drawn to the concluding portion of the Subordinate Judges judgment in the foreclosure suit. Incorporating this portion in it (see para. 2), a preliminary decree for foreclosure in the usual form prescribed under Order 34, Rule 2, C.P.C., was passed, and it stated if the decretal amount, with costs, is not paid within six months, i.e., on or before November 27, 1927, the one anna share.... will be sold and the defendants shall be debarred from all rights to redeem the property.... This must have been followed subsequently by a final decree, though it has not been filed, for it is admitted that the respondents have been, and are, in possession of the properties. The plaintiff by making the two payments mentioned above had subrogated himself to the rights of the mortgagees whom he paid off, and the rights which he had thus obtained became merged in the decree passed by the Subordinate Judge in the foreclosure suit. In the circumstances, it is clear to their Lordships that the rights which the respondents have obtained can only be subject to the qualification of the rights of the appellant, i.e., a charge in favour of the plaintiff must be held to have been created by the final decree in Suit No. 13/39 of 1927. That this should be the normal construction of the final decree is not denied, and their Lordships think rightly, by counsel for the respondents. Viewed in this light, it is not disputed that the present suit to enforce the charge is within time.

4. In the result, their Lordships will humbly advise His Majesty that this appeal should be allowed, and that the appellant should be given a decree as prayed for, with costs throughout.