K GANAPATHY Vs. VAIDYALINGAM

JUDGEMENT

(1.) THE plaintiff in O. S. No. 39 of 1964 on the file of the court of the Subordinate judge of Nagarcoil is the appellant before this court. The appellant and respondent are brothers and admittedly the respondent executed the suit promissory note, namely, Ex. A. 1 dated 9th December 1959 in favour of the appellant for Rs. 4,000 repayable with interest at 9 per cent. per annum from the date of the promissory note. Equally admittedly the promissory note was executed by the respondent in consideration of the share of the business he obtained under Ex. A. 2 dated 23-41135 (M. E.), a copy of the partition deed entered into between the respondent and the appellant. The suit itself was instituted on 10th October 1964 With reference to the date of promissory note, namely, 9th December 1959. certainly on 10th October 1964 the suit was barred by limitation. In order to escape from this bar of limitation, the appellant relied on the deposition of the respondent in O. S. No. 153 of 1961 on the file of the Court of the District Munsif, Nagarcoil, dated 24th July 1962, as constituting the acknowledgment of his liability under the suit promissory note. A copy of this deposition of the respondent has been marked as ex. A 3. The learned Subordinate judge, who tried the suit, accepted the case of the appellant and held that the statement contained in Ex. A 3 constituted an acknowledgment of liability on the part of the respondent herein and therefore the suit was in time and not barred by limitation. He accordingly decreed the suit. Against this judgment and decree, the respondent preferred an appeal to the learned District Judge of Kanyakumari at Nagarcoil, who, on 22nd June 1966 in as. No. 63 of 1965 on his file, reversed the conclusion of the learned Subordinate judge in this behalf and dismissed the suit. Hence the present second appeal by the plaintiff in the suit.

(2.) FROM the facts stated by me above, it will be clear that this appeals within a very narrow compass, the only question for decision being whether the statement relied on in the deposition of the respondent as contained in Ex. A. 3 can be said to constitute an acknowledgment under Section 19 of the Limitation Act, 1908.

(3.) O. S. No. 153 of 1961 on the file of the Court of the District Munsif at Nagarcoil itself was a suit instituted by the appellant's daughter against the respondent for recovery of certain sums of money. In that suit, the respondent herein who figured as the defendant gave evidence and the sentences in the deposition of the respondent on which reliance has been placed are the following two only:-