RUDRAPPA FAKIRAPPA SANKANNAVAR Vs. MALLANGOUDA AND

JUDGEMENT

(1.) The scope of Article 82 of the Indian Limitation Act (which shall be hereinafter called the 'Act') comes up for consideration in this appeal.

(2.) The facts proved are: the second defendant borrowed in 1926 a sum of Rs. 2,000/- From the Gajanan Urban Co-operative Bank at Byadgi; the appellant (plaintiff) and the deceased first defendant were sureties for the principal debtor (second defendant); the principal debtor defaulted in paying the amount borrowed; consequently there was an award decree in 1930 again the principal debtor as well as against the sureties; the principal debtor became an insolvent some time in 1933; the loan due to the Co-operative Bank in the year 1946 amounted to Rs. 4,800; at the stage the President of the Co-operative Bank sent for the appellant and asked him to pay up a sum of Rs. 1900 in full satisfaction of the debt due to the Bank: he promised the appellant that if he paid Rs. 1900 he would recommend to the Assistant Registrar 4, Co-operative Societies, Dharwar to write off the balance; accordingly one Kotrappa Gulappa Gondi on behalf of the appellant deposited on 2-11-1946 a sum of Rs. 1900/- in the Co-operative Bank and admitted the letter Ex. 77. The relevant portion of that letter reads as follows:

(3.) The Courts below have held that the suit is barred by limitation. They have held that Article 82 of the 'Act' governs the facts of the case. This conclusion is not open to challenge. But the point in controversy is, whether the cause of action arose on 22-11-1946 when a sum of Rs. 1900/- was deposited or on 17-4-1947 when the same was adjusted towards the debt due. Sri Malimath, the learned counsel for the appellant contends that the deposit made on behalf of his client became a payment only on 17-4-1947 and at any rate it became an excess payment on that day and the suit having been instituted on 16-2-1950 the same is within time. Article 82 of the 'Act' reads as follows: