THOMMEN PYLI Vs. OUSEPH

JUDGEMENT

(1.) Plaintiff is the appellant in this second appeal. Plaintiff is the liquidator of the Gothuruthy Educational and Industrial Company Limited. That company started a kuri in which one Augustinju, the predecessor in interest of the defendants, joined one fourth ticket. After the death of Augustinju, the defendants paid subscriptions for the kuri and they bid one eighth ticket. For payment of the future subscriptions they executed a kuri security bond, Ext. A, on 5.12.1103 charging the plaint schedule properties. The bond contained the usual acceleration clause by which the executants undertook to pay the whole future subscriptions in a lump if default was committed in the payment of any one instalment. Subscriptions were paid only till the 23rd instalment, and default was committed from the 24th instalment which fell due on 10.10.1108. The starter, company, sent a registered notice on 1.11.1112 demanding future subscriptions in a lump. But the Cochin Kuri Proclamation dated 29.11.1111, which was further extended by Proclamation V of 1112, prohibited the company from suing for the whole future subscriptions. Paragraph 2 of the proclamation provided:

(2.) Defendants 1 and 5 contested the suit. They contended that the suit was barred by res judicata and also under O.2 R.2(2) of the Code of Civil Procedure. It was further contended that the suit was barred by limitation. The Trial Court held that the suit was not barred by res judicata or limitation, but that it was barred under O.2, R.2(2) of the Code of Civil Procedure. The suit was accordingly dismissed without costs. The appeal filed by the plaintiff was also dismissed. The lower appellate court also was of opinion that the suit was barred under O.2 R.2(2) CPC.

(3.) The question for decision in this second appeal is whether the suit is barred under O.2 R.2(2) CPC O.2 R.2 sub-r.2 reads: