SBT Vs. CHACKO LUKKA

JUDGEMENT

(1.) IN this revision petition the decree and judgment of the learned Munsiff of Kottayam in S. C. S. No. 259/62 dismissing the plaintiff's action as barred by limitation, are challenged by Mr. K. C. John, learned counsel for the petitioner-plaintiff.

(2.) THE suit was on a chitty transaction. THE plaintiff was the chitty foreman and the 1st defendant was a subscriber in the said chitty. No doubt there is a variola Ext. P-1 executed, wherein the rights and liabilities of the chitty foreman as well as of the various subscribers appear to have been fairly elaborately dealt with. But in this case it is seen that tire 1st defendant bid the chitty and to safeguard the payment of future subscriptions he executed the chitty security bond, Ext. P-2 dated 30-12-55 along with defendants 2, 3 and 4. THE 1st defendant committed default in the payment of the 36th instalment onwards and upto and inclusive of the 40th instalment. THE 36th instilment became due on 2-3-1958 ; and admittedly the 1st defendant committed default in the payment of the said instalment as well as of the subsequent instalments. THE chitty terminated on 2-7-1958 , and the suit was instituted for recovery of the amounts due from the 1st defendant as on 21-12-1962. THE other executants of ext. P-2, namely defendants 2,3 and 4, are also made parties to the suit and relief claimed as against those defendants also.

(3.) THERE can be no controversy that if the suit is to be considered to have been instituted only on the basis of the chitty variola evidenced by Ext. P-1, it cannot be held that it is barred by limitation. But the question is as to whether in this case it can he held that the suit has been instituted as against the parties concerned only on the basis of the chitty thalavariola Ext. P-1.