RAMAKRISHNA PILLAI (DECEASED) AND ORS. Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) FROM the mother of the respondent herein, the appellant purchased certain property under Exhibit A -1 dated 5 -9 -1119 M.E. The very property purchased by the appellant was charged with certain debts in a partition arrangement entered into' between the respondent's mother and certain other persons. On the basis of that charge, O.S. No. 348 of 1121 M.E. was instituted on the file of the Court of the Principal District Munsif, Padmanabhapuram, and a decree was passed therein on 20th March, 1950. Since the appellant was vitally affected by this decree, in order to safeguard his interest and to save the property, he paid the amount due under the decree. Before making the payment, he preferred an appeal against the judgment and decree in O.S. No. 348 of 1121 M.E. itself, but he did not prosecute the appeal, and the same was dismissed for default on 5th August, 1955, and the order in the said appeal has been marked as Exhibit B -6. It is thereafter only that the appellant paid the amount due under the original decree on 2nd May, 1960, as evidenced by Exhibit A -10. Having made this payment, he instituted the present suit O.S. No. 139 of 1963 on the file of the Court of the Principal District Munsif, Padmanabhapuram, for recovery of a sum of Rs. 1,530 as damages sustained by him because of the property purchased by him being subjected to a prior charge. The suit was resisted by the respondent herein, and the principal ground of defence was that the payment made by the appellant was a voluntary payment, since on the date when he paid the amount, viz., 2nd May, 1960, the execution of the decree was barred by limitation, and in such circumstances, the payment made by the appellant could be treated only as a voluntary payment, for which the respondent cannot be held responsible. Both the Courts have accepted the plea of the respondent, and dismissed the suit of the plaintiff, and hence the present second appeal by the plaintiff.

(2.) THE only question that arises for consideration is whether the payment made by the appellant herein was a voluntary payment in the sense that at the time when he made the payment, the execution of the decree in respect of which the payment was made was barred by limitation.

(3.) AS far as the present case is concerned, I have already referred to the fact that the appeal preferred by the appellant was dismissed for default, and under Section 2, Sub -section (2) of the Code of Civil Procedure, the order dismissing an appeal for default is not a decree. Therefore, the relevant expression in item 2 of column 3 of Article 182 of the Limitation Act for the purpose of this case is the expression final order of the Appellate Court. The final order of the Appellate Court was ma4e on 5th August, 1955. The period of limitation is six years, and that period has to commence only from 5th August, 1955, the date of the final order of the Appellate Court. If so, the payment made by the appellant on 2nd May, 1960, is within the period of limitation, and therefore, cannot be said to be a voluntary payment, which was the only ground on which the suit of the appellant was dismissed. Since the ground urged by both the Courts below for dismissing the suit of the appellant being untenable this second appeal is allowed, and the judgments and decrees of both the Courts are set aside, and the suit of the appellant is decreed. The parties will bear their own costs throughout. No leave.