NAGAPPA CHENDAPPA KOLLI Vs. NANNIBU

JUDGEMENT

(1.) This is a second appeal directed against the judgment and decree of the Extra Assistant Judge of Dharwar dated 27-12-1954 in appeal No. 677 of 1955 reversing the decree in Original Suit No. 68 of 1951 on the file of the Joint Civil Judge, Junior Division Gadag.

(2.) The plaintiff who is the appellant in this appeal sued for recovery of money of Rs. 930/inclusive of interest on the basis of a pronote dated 29-9-47 said to have been executed by one Devalsab the deceased for a sum of Rs. 400/-. He further pleaded that the said Davalsab paid an amount of Rs. 200/- towards interest on 9th August, 1950 which was endorsed on the pronote under his signature. The defendant Davalsab died within three days of the institution of the suit and his widow and minor children were brought on record as the legal representatives of the deceased. In their written statements while admitting the execution of the pronote they inter alia contended that Davalsab did not make any payment on 9th August, 1950 nor made any endorsement to that effect and the suit was time barred and it should be dismissed. The learned trial judge held that the satisfaction as alleged by the defendant had not been proved. He found that it has not been established as alleged by the plaintiff that Davalsab the deceased paid Rs. 200/- on 9th August, 1950, but after comparing the signature below the endorsement with the admitted signature on the pronote he came to the conclusion that the signature below the endorsement of payment was that of the deceased Davalsab. He further held that as the said endorsement amounted to an acknowledgment of a liability though it cannot be operative under S. 20 of the Limitation Act, nevertheless it is effective as an acknowledgment of liability under S. 19 of the said Act so as to save limitation. He therefore decreed the plaintiff's suit with costs and allowed him future interest on the amount of Rs. 800/at the rate of 3 per cent per annum from the date of the institution of the suit.

(3.) The defendant went in appeal to the District Court, Dharwar. The learned Extra Assistant Judge, Dharwar found that there was no evidence on record to the effect that the signature bellow the endorsement is that of Davalsab the deceased. He held that in the absence of any positive evidence the trial judge erred in coming to the conclusion by merely comparing the admitted signature with the signature below the endorsement that they are of the same person i.e., Davalsab the deceased. He therefore allowed the defendant's appeal, set aside the judgment and decree of the trial court and dismissed the plaintiff's suit.