KITTUNNI GUPTHAN Vs. M C KUTTIKIRSHNA GUPTHAN

JUDGEMENT

(1.) The defendants are the appellants. This appeal is against a decree in a suit for recovery of money due on the basis of a pro note executed by the defendants in favour of the plaintiff. He also instituted another suit in O. S. 115/1960 of the Ottapalam Munsiff's Court on the basis of another note executed by the 1st defendant. In this appeal I am only concerned with O. S. 114/60. The facts of the case are: Defendants 1 and 2 executed a note in favour of the plaintiff for Rs. 1,300/- on 24-4-1956. It was alleged that an amount of Rs. 200/- was paid on 20-6-1956, that interest up to the date and Rs. 356-10-6 towards principal were paid on 21-11-1956 and that these payments were endorsed in the handwriting of the 1st defendant on the note. The claim in the suit was for the balance of the principal and interest due. The plaintiff had issued a notice on 10-1-1959 claiming the amounts due under the two notes and the defendants had sent a reply admitting their liability but contending that they were entitled to the benefit of Act 31 of 1958. The suit was resisted mainly on the ground that it was barred by limitation, that all the payments have not been credited in the plaint and that the acknowledgment relied on in the plaint was not valid and binding on the defendants.

(2.) The Trial Court dismissed the suit finding that the suit was barred by limitation, but on appeal by the plaintiff, the lower appellate court, reversed the decree and hence this appeal.

(3.) The only point for decision in this appeal is whether the suit was barred by limitation. But counsel for the respondent raised a preliminary objection to the maintainability of this appeal on the ground that the suit is of a small cause nature of the value not exceeding Rs. 1,000/- and that no second appeal would lie under S.102 of the Code of Civil Procedure. In the view I am taking of the merits of this appeal it is unnecessary to decide the preliminary point.